
Book_ 






IN THE HOUSE OF REPRESENTATIVES 
OF THE UNITED STATES 

.Sixty-First Congress 



coNTi':si i:i) i:li:ction case 

OF 

JOHN M. PARSONS 

CONTESTANT 

V. 

EDWARD W. SAUNDERS 

CONTESTEE 

FROM THE FIFTH CONGRESSIONAL 
DISTRICT OF VIRGINIA 



ARGUMENTS OF COUNSEL 

BEFORE COMMITTEE ON ELECTIONS NO. 2 



J. H. CARRICO, Esq. 
Hon. a. J. MONTAGUE 
Hon. JOHN M. THURSTON 

Attorneys for Contestant 

Hon. EDWARD W. SAUNDERS 

As Contestee 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1910 



3 S ■' ■' ^ 






IN THE HOUSE OF REPRESENTATIVES 
OF THE UNITED STATES 

Sixty-First Congeess 



CONTESTED ELECTION CASE 

OF ., /, J 

JOHN M. PARSONS 

CONTESTANT ^/^ 

V. 

EDWARD W. SAUNDERS 

CONTESTEE 

FROM THE FIFTH CONGRESSIONAL 
DISTRICT OF VIRGINIA 



ARGUMENTS OF COUNSEL 

BEFORE COMMITTEE ON ELECTIONS NO. 2 



J. H. CARRICO, Esq. 
Hon. a. J. MONTAGUE 
Hon. JOHN M. THURSTON 

Attorneys for Contestant 

Hon. EDWARD W. SAUNDERS 

As Contestee 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1910 






Committee on Elections No. 2. 



JAMES M. MILLER, KANSAS, Chairman. 
JAMES F. BURKE, Pennsylvania. 
DUNCAN E. McKINLAY, California. 
JOHN M. NELSON, Wisconsin. 
JOSEPH HOWELL, Utah. 
WILLIAM S. BENNET, New Yoek. 
WILLIAM E. TOU VELLE, Ohio. 
JAMES A. HAMILL, New Jeesey. 
CHARLES A. KORBLY, Indiana. 

Albert P. Myers, Clerk. 



D« OF D, 



r 






CONTESTED ELECTION CASE OF JOHN M. PAHSONS v EDWARD W. SAUNDERS, FROM 
THE FIFTH CONGRESSIONAL DISTRICT OF VIRGINIA. 



Committee on Elections No. 2, 

House of Representatives, 

Wednesday, March 2, 1910. 

The coinmittee met at 10.30 o'clock a. m., Hon. James M. Miller 
(chairman) presiding. 

Present on behalf of the contestant, Hon. John M. Thurston, Hon. 
A. J. Montague, and J. H. Carrico, esq. 

The contestee appeared in proper person. 

The Chairman. The committee will be in order. The subcommit- 
tee is ready to report and we will receive their report the first thing. 

Mr. Bennet. Mr. Chairman, for the subcommittee w^e have to 
report that we counted the ballots, some 14,000, and report that there 
were cast for Mr. Saunders 7,025 ballots; for Mt. Parsons 6,910 bal- 
lots: for Mr. Mathew, 1,5 ballots. That we report to the full com- 
mittee 239 ballots as void; that there were 115 doubtful or contested; 
that there were 79 ballots from which the voter erased the name of 
Mr. Parsons, leaving on the names of both Mr. Saunders and Mr. 
Mathew, and that there were 133 ballots from which the name of 
Mr. Saunders was erased and the names of ]Mr. Parsons and Mr. 
Mathew were left; that we have not counted these ballots in either 
instance for Mr. Saunders or Mr. Parsons, but report them to the 
full committee for its action. 

The Chairman. If there is no objection, the report of the subcom- 
mittee will be received and filed, and no action will be taken on it 
at this time in view of the fact that I think both sides want to argue 
some propositions in reference to these ballots for the purpose of 
determining the count under the law of the State of Virginia. Have 
you gentlemen any agreement as to time, how long you want on 
each side ? If you folks will make some suggestions to the committee, 
we will be glad to follow them, if we can. 

Mr. Thurston. Mr. Chairman, I was speaking with Mr. Saunders, 
and we have not reached any meeting of minds on that subject. 
There is only one suggestion I would like to make to the committee. 
If there is to be a time hmit I would like it fixed before the argument 
commences, so that we can adjust ourselves to it. We are in the 
hands of the committee entirely, and willing to follow any rule you 
may wish to adopt. On our side I think we could give the committee 
a fair understanding of our case, opening and closing arguments, in 
about three hours, which I would suggest, if there is to be a time 
limit fixed. 

The Chairman. Three hours for the entire argument on each 
side ? 

Mr. Thurston. Three hours on each side. 



4 PAHSOIsrS vs. SAUNDEKS. 

The Chairman. Six hours altogether. 

Mr. Saunders. Mr. Chairman, as Senator Thurston has said, I 
talked with him about the matter this morning for just a moment. ■ 
I have only to say now what I said heretofore when this question as 
to a time limit was first asked me, and that is that the only request 
in connection with this case which I wish to submit to the committee 
is one for ample time for argument. I want no delay or anything 
of that sort in connection with the hearing, but this is a case which, 
with respect to the variety of points to be considered in relation to 
the Virginia laws, as well as in relation to what you may call the 
larger questions of law outside of the laws local to Virginia, can not 
be presented in any limited time in such a manner as to make the 
argument of any service to the committee. The committee has 
either to do an immense amount of work of its own volition, without 
regard to the aid counsel may give it, or it can limit that amount 
of work, curtail the same, and relieve itself, by securing the help of 
counsel who have been over the entire ground, whether of law or 
fact. I have been over this case with a view to putting my con- 
clusions in such shape that I may be of aid to the committee. I 
have run down every question of law connected with this inquiry, 
have run down the evidence relating to every contested vote, and I 
think that, with respect to the work of the committee, I can be of 
aid to them by an oral argument not too limited as to time. I think 
after the committee gets into this case it will find that if an argu- 
ment is to be of any value at all it would be with reference to those 
phases of the case of which I have spoken. I would suggest, and I 
suggested this to Senator Thurston, that it would be better for the 
committee to proceed for a while so as to get some idea of the scope 
of this case and of the questions that will be brought into it, and 
then let them determine on the limitations of the argument. You 
will find when you take up this case that there is, I may say, an 
infinite variety of details to be considered in the light of the evidence 
and of the laws of Virginia, as well as of the general laws. I want 
to be of help to the committee by presenting my case in such a way 
as will aid them to secure the information that they will have to 
secure in order to arrive at that comprehensive view of this case 
that will be essential before a decision can be rendered on the merits. 

The Chairman. What would you suggest to the committee as a 
reasonable length of time ? 

Mr. Saunders. I would suggest this, to permit us to go far enough 
into the case for the committee to secure that knowledge of which 
I speak, namely, a knowledge of the scope of this case. There is not 
a proposition of law that will be advanced here — save those outside 
of the State — with which the committee will not find themselves 
unfamiliar. There are questions of law arising under our own con- 
stitution that will have to be argued as separate propositions, and 
will, in themselves, require no little time. There are other features 
of our law, that will not require so much time for argument, but this 
law will have to be applied to a number of specific cases, and these 
cases must be run down and related to the appropriate law. This 
I wish to do in my time. I do not want a moment of time, unless in 
that moment I can be of help to the committee. 

Mr. Thurston. I do not see, Mr. Chairman, how it would be at all 
fair to us to start in without any time limit and fix one afterwards. 



PAESONS VS. SAUNDERS. 

Mr. Saunders. It seems to me it would be as fair for one side as 
for the other. 

Mr. Thurston. We would have to make our opening statement. 
I would not want to have the responsibility thrown upon me in 
making the closing argument of answering ad libitum everything that 
might be drawn out in an extensive argument. 

Mr. Saunders. If the Senator will pardon me, I will say this, if 
what I put in my argument is of no value, it will not trouble you to 
answer it; if it is of value, the committee should know it. 

Mr. Thurston. Whatever time we have we want to divide among 
ourselves, and I want to throw some of the labor on my associates 
who have to talk before I do, if there is to be any time limit. 

Mr. Saunders. If the committee will pardon me, I wish to refer 
for a moment to the brief which the gentlemen have filed with 
respect to the contested ballots. In relation to these ballots: 
These ballots were cast for the one or the other of the candidates 
and are affected in each case with a designated disability. With 
respect to each individual voter that they have cited, I have made an 
inquiry as to the same, and I am prepared to show in such a way that 
these gentlemen can not controvert it, because it will be done from 
the record, that in many cases the references of the contestant are 
utterly inadequate to the disposition of the case. You will have to 
make this inquiry either apart from our help or it can be done with 
our help. I do not wish to consume a moment of the committee's 
time save in such a way as to be helpful to the committee in deter- 
mining these inquiries. I have been at a great deal of pains to segre- 
gate the various facts of this case. 

Mr. Bennet. I move that, without fixing any time limit at this 
time, the committee instruct counsel that it is the sense of the com- 
mittee that they endeavor to confine their arguments on each side to 
five hours on a side. That leaves them free, either side, if they find 
they can not complete in a less time. 

Mr. Thurston. I do not suppose the committee will require us to 
occupy all the time ? [Laughter.] 

Mr. Bennet. No. 

The Chairman. We will be very glad if you do not. [Renewed 
laughter.] 

(The motion having been seconded and the question put, the mo- 
tion was carried.) 

The Chairman. I want to say, as far as I am personally concerned, 
and I t]iink I am speaking also for the committee, that we are anxious 
to get all the help we possibly can from counsel, and before you start 
into the argument I want to make a statement of this case as I under- 
stand it, not speaking for the committee now, but for myself. The 
contestant in the case claims his right to sit in this Congress by rea- 
son of the fact, as he alleges, that the State of Virginia by its legisla- 
ture, after the census of 1900, redistricted the State, and following 
that redistricting they again changed the districts of the State in 
1908, taking one county out of the Fifth Congressional District and 
adding it to the Sixth Congressional District. The contestant claims 
that, having exhausted the power or authority of the State under 
the census of 1900 once, they had no authority or power after that 
time, during that census period of ten years, to make any changes in 
the boundaries of the districts. 



6 PAESONS VS. SAUNDERS. 

In the second place, the contestant claims that even though the 
State had the right to redistrict the State in 1908 as it did, having 
the right at any time during the census period to make any changes 
in congressional districts that the State may desire, it had no right 
to make such changes as were made by the legislature of Virginia in 
1908, because of the constitutional provision of the State of Virginia 
which requires that in the redistricting of the State for congressional 
purposes the districts must be compact, contiguous, and, as nearly 
as possible, equal in population. It is alleged here by the contestant 
that the Fifth Congressional District of Virginia, prior to the redis- 
tricting of 1908, had a population of 175,579; that the vSixth Con- 
gressional District had a population of 181,571; that the legislature 
of the State of Virginia at that time provided that the county of 
Floyd should be taken out of the Fifth Congressional District, this 
count}^ having a population of about 15,000, and added to the Sixth 
Congressional District, which would give to the Fifth Congressional 
District a population of 160,191, and the Sixth Congressional District 
a population of 196,959. 

It is further alleged by the contestant that a number of ballots 
were thrown out by the judges of election in this congressional district 
at the election held November 3, 1908, by reason of the fact that more 
than one name appeared under the congressional designation as a 
candidate for Congress, and it appears from the evidence in this case 
that some years prior to this election one Elliott Mathew, whose 
name appears upon the ballots as a candidate for Congress, had been 
adjudged insane, and for several years had been a patient at the 
state hospital for the insane of the State of Virginia. That prior to 
the election of 1908 he made his escape from the hospital, and while 
at large he wrote a letter to the secretary of the Commonwealth asking 
to have his name placed upon the ballot in this district as a candidate 
for Congress. It is claimed by contestant that Mathew having been 
adjudged insane and being insane at this time, his name being upon the 
ballot is a nullity, and ought not to have any legal force or effect in 
the question of counting the ballots as returned in this election 
contest. 

It is further claimed by contestant that there were a large number 
of voters voted for thecontestee in this district at the election of 1908 
who were not legally qualified under the laws of Virginia to vote, not 
having paid their poll tax or having whatever other legal qualifications 
are necessary to entitle a man to vote under the laws of the State of 
Virginia. 

It is claimed on the part of the contestee that the State of Virginia 
had a right at any time during the census period to make such changes 
in its congressional districts as it might desire to make, notwithstand- 
ing the constitutional provision in reference to redistricting the State; 
that it had a right to make such a change as was made in 1908 by the 
legislature of Virginia. 

It is further claimed by the contestee that even though Mr. Elliott 
Mathew had been adjudged insane and was insane at the time of 
asking that his name be put upon the ballot, he had a right to have 
his name on the ballot and to be voted for by any person who might 
desire to vote for him for Congress. 

It is also claimed on the part of the contestee that many, if not all, 
of the votes that are challenged here by reason of the parties not 



PABSONS VS. SAUNDERS. 7 

beinw on the poll-tax list should be counted, as those parties were still 
entitled to vote under the laws of the State of Virginia, if they had 
paid their taxes, as required by law. 

It is conceded on the part of the contestee here that if the com- 
mittee should find that the State had no right to make the appor- 
tionment that was made by the legislature of Virginia in 1908, 
taking Floyd County out of the Fifth Congressional District and 
adding it to the Sixth Congressional District, the votes received by 
the contestant in Floyd County would overcome the majority of the 
contestee as returned by the judges of election, and that the con- 
testant, Mr. Parsons, would be entitled to a seat in this Congress. 

Mr. Saunders. If you will pardon me in that connection, the 
concession is not exactly in that form. My concession is that should 
the committee consider that under the law they can count the votes 
in the county of Floyd, there would be enough votes there to seat 
Mr. Parsons. Of course, apart from the question of the right of the 
State to redistrict, I reserve the right to contend that the committee 
could not count, as a matter of law, the ballots cast for Parsons in 
Floyd County; but I admit that, should the committee determine to 
count them, as a matter of law, there would be enough of them to 
elect Parsons, if added to the ballots cast for him in the fifth dis- 
trict as constituted by the act of 1908. 

The Chairman. He has filed here in writing the concession he 
makes, and it might be put in the record at this place. 

Mr. Saunders. Yes; that may be done. 

(The concession referred to is as follows:) 

With respect to the county of Floyd, contestee submits the following: 
This county, by act of the Virginia legislature, was transferred from the Fifth Vir- 
ginia District to the Sixth Virginia District prior to the election in November, 1908. 
At that election a number of voters undertook to vote for John M. Parsons, the Repub- 
lican candidate for Congress in the Fifth Virginia District as constituted by the act 
aforesaid, erasing from the official ballot in the Sixth Virginia District the name of the 
Republican candidate in that district and substituting therefor the name of the said 
John M. Parsons as aforesaid. It is a part of the contention of contestant that these 
votes so cast for the said contestant in the said county of Floyd under the circum- 
stances aforesaid can now be counted in favor of the contestant by this committee. 
Contestee utterly denies that this can be done under any view of the law, but should 
the committee hold that the Floyd ballots can be counted, contestee is walling to 
admit, as a matter of fact, that enough ballots were cast for said contestant in this 
county to overcome contestee's f>fEcial majority in the Fifth District, as constituted 
by the act of 1908 as aforesaid. This statement or concession on the part of contestee 
will make it unnecessary for the committee to go through the formality of counting 
the Parsons ballots in the county of Floyd . 
February 23, 1910. 

E. W. Saunders. 

The Chairman. I made this statement for the purpose of aiding 
counsel in a presentation to the committee of their argument of the 
case. You have the understanding of this case on the part of the 
committee, or at least on the part of the chairman of the committee, 
as to what both sides claim. I do not understand it is claimed in this 
case by either side, at this time at least, that there was any fraud in 
connection with the election in the Fifth Congressional District of 
Virginia, or in the counting of the ballots. I want both sides to know 
the understanding of the committee on that proposition. The com- 
mittee counted the ballots, I may say, for the purpose of finding out 
how many ballots were cast in the Fifth Congressional District for 
two persons and were thrown out by the judges of election, which is 



8 PAHSONS VS. SAUNDEES. 

the only way we could determine that question, and that was the sole 
object we had in counting the ballots. If that question had not been 
raised I do not know whether the committee would have wanted to go 
into the counting of the ballots at all or not. Second, I want to say 
on the question of the counting of the ballots that we did not count 
the ballots in Floyd County, for the reason that the contestee, Judge 
Saunders, filed with the committee the concession here in reference 
to that count, and thus avoided the responsibihty on the part of the 
committee of taking up the time of the committee in counting those 
ballots. 

Having said this much, I would like to have the counsel in the case, 
as far as possible, confine themselves to certain legal propositions, if 
they will: First, as to the right of the State of Virginia to make the 
apportionment that was made in 1908 in the congressional districts 
in the State. Just two claims are made by the contestant on that 
point — that, having exhausted the power or authority to redistrict 
the State, it had no other authority; and, second, that even though 
that position is not tenable, I understand the contestant takes the 
position that under the constitution of the State they had no right 
to make the kind of change that was made, because of the unequal 
population in these two congressional districts. 

On the questions that are raised in reference to the name of Mr. 
Mathew appearing on the ballot, I would like to have counsel point 
out to the committee, if they can, any authorities that sustain the 
contention of the contestant that, even though it is admitted that 
Mr. Mathew was an adjudged lunatic under the laws of the State of 
Virginia, and confined m the hospital for the insane in that State at 
the time of the election, his name on the ballot was a nullity, and 
that it had no legal force or effect, and that votes cast for Mr. Parsons 
and Mr. Mathew ought to be counted, or votes cast for Mr. Saunders 
and Mr. Mathew ought not to be counted. If there are any author- 
ities sustaining the other side of this proposition, we would like to 
have Judge Saunders point them out. 

On the question of these votes that it is alleged were illegal votes 
because the voters did not have the qualifications required under 
the laws of the State of Virginia, I want you to point to us fully all 
sections of the law of the State of Virginia under which you claim 
that these were not legally qualified voters on behalf of the contestant. 

Mr. Saunders. Mr. Chairman, just in that connection, with respect 
to Mathew, I would like for you to add that prior to the time he 
sent in his notice of candidacy to the secretary of the Commonwealth, 
he had spread broadcast through the district the fact that he was a 
candidate, announcing the same by means of postals, letters, and 
posted notices — in other words, he was an announced candidate, so 
far as that was concerned, some time prior to the time when he sent 
his notice of candidacy to the secretary of the Commonwealth. 

The Chairman. Is' there anythina;' in the record here to show 
that % 

Mr. Saunders. Yes, I can turn you to that in a moment. 

The Chairman. Aside from two cards. 

Mr. Saunders. Two cards, and the evidence of A. S. Gravely 
that notice of his candidacy was posted on the court-house door in 
Martinsville. In addition, you will find by looking to one of the 
exhibits the letter from Martin to the secretary of the Commomwealth 



PARSONS VS. SAUNDERS. 9 

that the former called the attention of the secretary of the Common- 
wealth to the fact that this man was a lunatic, and added further in 
his letter that Mathew had been advertising himself as a candidate 
for some time prior to the date at which he sent in his notice. (See 
Record, pp. 326, 266, 415.) 

Mr. Bennet. Mr. Chairman, is there not one other legal question ? 
I understand there is a contention on the part of the contestee that, 
despite the fact of the statute which may or may not be construed in 
opposition thereto, if a man had actually paid his poll tax for three 
years preceding the election, whether he appeared on the poll-tax 
book or not, he had the right to vote. I understand that a legal 
question is raised. 

Mr. Saunders. That is not exactly a correct statement of the 
proposition. 

Mr. Bennet. I did not make it as a correct statement 

Mr. Saunders. I mean that the gentleman is under some mis- 
apprehension. 

Mr. Nelson. I understand counsel are going to inform us of the 
requirements ? 

The Chairman. Yes. 

Mr. Nelson. Generally, and that would be included. 

Mr. Bennet. Yes; I just wanted to call attention to that as an 
additional question. 

Mr. Saunders. I just want to state my proposition in this connec- 
tion. It is not that the statute is unconstitutional, or anything of 
that sort, but that the constitution of Virginia does not require a 
voter's name to be on this posted tax list as a prerequisite to the 
right to vote. There is no such constitutional or statutory require- 
ment. 

Mr. Bennet. That is what I intended. I did not try to state the 
exact language. 

The Chairman. I have stated the chairman's understanding of this 
case for the sole purpose of helping counsel to present such arguments 
to us as may cover the real contentions of this case. Counsel will be 
allowed to make any corrections that they wish as they argue the case 
to the committee. 

Mr. Saunders. I think the chairman's statement of it, so far as I 
am concerned, is accurate. Before we take up the argument I would 
like to make two corrections in the record, so far as it affects me. 
One is in my brief, on page 48, where I would ask that this correction 
be made: You will find about three-quarters of the way down the 
page this language: "Contestant alleges that Mathews was not eligible 
to Congress. This is conceded." The word "not" must be in there. 
''This is not conceded." 

On page 91 of the analysis I filed with the committee, in reference 
to a man named Mills, you will find that the fourth line of the analysis 
reads as follows: " It is not shown how Mills voted." The word "not" 
should be erased. It should read, "It is shown." 

Mr. Bennet. That is erased here. 

Mr. Saunders. I did not know in how many of the analyses the 
correction had been made, and I wanted to have this change put in all 
of them. 

The Chairman. The contestant will now be heard in this matter, 
himself or by counsel. 



10 PARSONS VS. SAUNDERS. 

Mr. Thurston. I wish to suggest to the committee, and I suppose 
there will be no objection to it, that we desire to have arguments made 
in the opening of the case by Mr. Carrico and by Governor Montague. 
We wish to be fair to the other side and have the whole case presented 
before Mr. Saunders replies, and then I will close. 

ARGUMENT OF J. H. CARRICO, ESQ., OF Ilf DEPENDENCE, VA., 
ATTORNEY FOR THE CONTESTANT. 

Mr. Carrico. Mr. Chairman, I suppose it is immaterial to the com- 
mittee as to which of the propositions laid down is argued first ? 

The Chairman. Certainly; take your own course. 

Mr. Carrico. Mr. Chairman and gentlemen, I shall not try to 
argue all the propositions that were laid down by the chairman. 
There are three propositions that I think should be considered by the 
coinmittee in determining whether the contestant or contestee is 
entitled to a seat under this record. The proposition which I intend 
to discuss first is the j)roposition as to whether the name of Eliot 
Mathew, a lunatic, which appears on the ballot, is a nullity, and 
whether his name being on the ballot along with another name, 
either that of the contestant or contestee, would disqualify that 
ballot, and the ballot should be counted for neither one. 

The next proposition that I shall discuss is to the question of the 
poll tax of the voters. In the State of Virginia ail persons are 
required to pay poll taxes that are assessable against them for three 
years next preceding the election in which they offer to vote, except 
soldiers who have served in the civil war between the States on either 
side. Our tax is levied as of the 1st day of February of each year, 
and a young man coming of age since the 1st day of February of that 
year would simply apply to the treasurer and get a certificate and 
vote on that, and his name would not have to appear on the poll-tax 
paid list. 

Mr. Bennett. Pardon me right there. What are the provisions as 
to people who move in from other States ? 

Mr. Carrico. A man moving in from another State must have 
been in the State for a period of two years. He then, as shown by 
the registration books, would only be assessable for poll tax for two 
years, and he would only appear on the poll-tax books as paid for two 
years. The registration books are required to be present at the poll- 
ing place at each election. His registration shows where he came 
from, the time of his registration, and the time for which he should 
have paid poll tax. 

Mr. Saunders. In that connection would it bother you for me to 
interrupt you ? 

Mr. Carrico. Not at all. 

Mr. Saunders. It is not necessary in all cases for them to have 
paid two years' taxes. They may be only liable for one year's taxes, 
and still possess the right to vote, if the tax of that year is paid at the 
proper time. 

Mr. Carrico. That is right; they may be only liable for one year's 
taxes, but the registration books will show the length of time a man 
is liable for the taxes. For that length of time the contestant claims 
he should appear on the poll-tax list, which I will discuss more at 
length when I come to it. 



PAKSONS VS. SAUNDERS. 11 

The next question, which 1 shall deal with very briefly, is the 
question of the constitutionality of taking Floyd County out of the 
fifth and adding it to the sixth district. 

As to the proposition that Elliot Mathcw was a lunatic and that 
his name was a nullity on the ballot and that on all ballots on which 
his name aj^pears and the name of the contestee is marked out, 
the contention of the contestant is that those ballots should be 
counted for the contestant, and vice versa. Elliot Mathew, it is 
conceded, I think, in the contestee's brief, if I mistake not, is a 
lunatic. It certainly affirmatively appears in the record that he 
was a lunatic at the time he was circulating these notices of contest; 
he was a lunatic and an escaped lunatic. Pie had been adjudged a 
lunatic and sent to the Marion hospital for the insane some ten 
years previous to this. At various times he had been discharged as 
improved. 

The Chairman. Who was the superintendent of the asylum? 

Mr. Carrico. Mr. King. 

The Chairman. Mr. King testifies and presents there the record 
of the hospital. 

Mr. Carrico. I know he does. 

The Chairman. He shows that at that time he had escaped from 
the hospital. 

Mr. Carrico. Yes; I think it was in May he was taken back to 
the asylum and in June or July he escaped from the hospital and 
was returned to the hospital some time in October. Certain it was 
that at the time of the election he was in the insane asylum. 

Now, gentlemen, an insane man in Virginia is not entitled to vote, 
and certainly is not entitled to hold office. I do not think it will be 
seriously contended before this committee that a lunatic has any 
right to a seat in Congress, especially while he is an adjudged lunatic. 
The Virginia law is, "An insane person shall be construed to include 
every lunatic, noncompos, or deranged person." That is Pollard's 
Code, first volume, page 5. There is no question of this man being a 
lunatic. The Virginia law provides further that idiots, lunatics, and 
persons noncompos are excluded from registering and voting in the 
State of Virginia. It is not contended here that this man was a reg- 
istered voter or that he was a voter, and certainly he can not hold 
office. In Virginia the way a person gets on tlie ballot is this: He 
must notify the secretary of the Commonwealth thirty days prior to 
the election, in writing, that he wishes to become a candidate. That 
notice must be witnessed by two witnesses. 

Mr. Bennet. Twenty days, is it not, for a Congressman? 

Mr. Carrico. I may be mistaken as to that; it is either twenty or 
thirty. There is no question but what Elliot Mathew sent in a paper 
writing signed by himself and witnessed by two witnesses in time for 
his name to be placed on the official ballot. The only question there, 
is as to whether that writing had any force or effect; whether that 
writing was a legal notice. If it was not a legal notice, then, in its 
inception, no act of the secretary of the Commonwealth or of the 
electoral boards of the different counties in placing that name on 
there could make it a valid act, being invalid in its inception. As to 
his being a lunatic, the official records of the hospital are here : 

The official records of a hospital are competent evidence of the mental condition of a 
patient who has been confined in such institution. (Am. and Eng. Ency., vol. 16, 
p. 626; 99 Mass., 40; 46 Nebr., 493.) 



12 PABSONS VS. SAUNDERS. 

It has been held by a number of States that after an inquisition and 
adjudication of insanity of a person, all of his contracts, all of his 
writings, are absolutely void, except for necessaries. The courts say: 

After inquisition and adjudication of insanity, all his contracts, except for necessaries 
made whUe such adjudication is in force, are void. (Trust & C. Co. v. Boone, 102 Ga., 
202; Burnham v. Kidwell, 113 111., 425; Pearl v. McDowell, 311 Marsh (Ky.), 658; 
Carter v. Beckwith, 128 N. Y., 312; Haley v. National Loan, etc., Co., 44 W.Va., 450.) 

Any contract with an insane person is not only voidable, but absolutely void. (22 
Cyc.,1196; Dougherty -y. Payne, 127 Ala., 577; Burket). Allen, 29 N. H., 106; Edwards 
V. Davenport, 20 Fed., 756; Westerfield v. Jackson, 3 N. Y. St., 353; 61 Am. Dec, 642; 
Dexter v. Hall, 15 Wall. (U. S.) 9, 21 L. ed., 73.) 

The court in the case of Dexter v. Hall says : 

If at the time Hall executed the power in question he was insane and his insanity 
was general, the instrument was a nullity. 

Further the court says: 

The instrument in such a case is no more to be regarded as the act of Hall than if he 
was dead at the time of its execution. 

Now, gentlemen, if this paper writing which Elliot Mathew sent 
to the secretary of the Commonwealth was no more to be regarded 
than if the writing had come from a dead man, I do not think it will 
be seriously contended before this committee but what that paper 
writing, when it started out, was invalid, and if invalid in its incep- 
tion, it could not become valid by any acts of the secretary of the 
Commonwealth or any electoral board in acting upon it. 

The good faith of one party and that party acting in good faith can not render an 
invalid act valid. (Hanley v. Nat'l Loan & In. Co., 44 W. Va., 452.) 

I think, gentlemen, that it is also settled in the Supreme Court, in 
German Savings and Loan Society v. Delashmut (67 Fed. Rep., 400), 
where it is said: 

The deed of a person non compos mentis is void. A person incapable of understand- 
ing is incapable of executing a deed or contract. It is now settled that deeds and 
contracts of insane persons are absolutely void. 

If all contracts and all paper writings are void as to lunatics and 
people non compos, then certainly his notice of his candidacy to the 
secretary of the Commonwealth was absolutely void and invalid. 
Further, gentlemen, the secretary of the Commonwealth did not act 
with his eyes closed. The record shows here that previous to the time 
for printing the ballots he had sent the names of the candidates to 
be placed on the official ballots. The secretary of the Commonwealth, 
after receiving these notices, and previous to the time for printing 
the ballots, certifies all names to the difi^erent electoral boards of the 
county, which are composed of three persons appointed by the cir- 
cuit court of the county. They, of course, are all Democrats. 

After the secretary of the Commonwealth had certified these names 
out to the electoral boards of the different counties the secretary of 
the electoral board of Franklin County notified him that Elliot 
Mathew was a lunatic. The secretary of the Commonwealth took 
no steps to prevent his name going on the ballot, but informed the 
secretary of the electoral board that there was no way by which he 
could prevent his name going on there, and his name did go on there. 
It is contended here in the contestee's brief that the contestant should 
have taken precaution and taken the matter to court and enjoined his 
name from going on the official ballot. 



PAESONS VS. SAUNDERS. 13 

Mr. Bennet. Pardon me just a second. Did not the secretary of 
the Commonwealth seek to obtain an opinion in writing from the 
attorney-general ? 

Mr. Carrico. He sought an opinion from the attorney-general, 
but I think not in writing, sir; and the attorney-general was of the 
opinion that he was, that he could not prevent his name going on the 
ballot. 

Mr. Nelson. You claim that the secretary of the Commonwealth 
had the right of his own accord to pass upon that, as to whether a 
man is insane or not ? 

Mr. Carrico. No, sir; he did not have the right to pass on whether 
he was insane or not, but when he is already adjudged a lunatic he 
had a right to pass on whether he had received a legal notice of liis 
candidacy or not. 

Mr. Nelson. And when he is furnished the proof? 

Mr. Carrico. And when he is furnished with the proof, as he was. 
He was informed by the secretary there of the electoral board of 
Franklin County that this man was a lunatic, and was at the time in 
an insane asylum. My contention is that he had the right to pass on 
the fact that he had received no legal notice from a person who was 
capable of giving a legal notice, and therefore that his name ought 
not to be certified out to go on the official ballot. The contestee 
claims that it was the duty of the contestant to have gone into the 
courts to enjoin the secretary of the commonwealth or the electoral 
boards of the different counties from placing Elliot Matthew's name 
on the ballots. Gentlemen, it was an impossibility. The contestant 
did not know whose name was going to appear on that ballot. » The 
electoral boards throughout the counties received the names; they 
were taken in, and the printer is sworn not to divulge the names that 
go on the ballots, and no one but the Democratic electoral boards 
throughout the county and the secretary of the commonwealth knows 
who is going on that ballot or who is on the ballot until you go in on 
the day of the election to vote. Certainly the contestant had no 
chance whatever to enjoin the name from going on the ballot. 

Mr. Bennet. The electoral boards of the different counties were all 
of one party ? We found that there were several counties that were 
Republican. 

Mr. Saunders. You mean the judges of election at several points 
in those counties. 

Mr. Bennet. I mean the counties were Republican. In those 
counties were not the electoral boards Republican? 

Mr. Carrico. No, sir; the Republicans had not a representative 
on an electoral board in any county. They are appointed by the 
judges, and the judges are elected by the legislature, and of course 
the legislature is very largely Democratic in our State, and all the 
judges are Democratic, and they appoint Democratic electoral 
boards. 

Mr. Nelson. Explain what an electoral board is. 

Mr. Carrico. The electoral board has the duty of having the 
official ballots printed and appointing the judges of election and 
appointing the registrars for the county. 

Mr. Nelson. Are they appointed by the governor ? 

Mr. Carrico. They are appointed by the circuit courts. 

Mr. Slemp. By the judges. 



14 PAESONS VS. SAUNDERS. 

Mr. Carrico. The judges of the circuit courts appoint the elec- 
toral boards; the}^ appoint the judges of election and registrars, and 
they have charge of printing and distributing the official ballots 
which are voted. 

Mr. Bennet. Let me see if I have this straight. The legislature 
elects the circuit judges, the circuit judges appoint the electoral 
boards, and the electoral boards appoint the judges of election ? 

Mr. Carrico. Yes, sir. 

Mr. Bennet. And there is some provision in your statute as to 
bipartisan or minority representation amongst the judges of elec- 
tion, but none as to membership on the electoral boards; is that 
right ? 

Mr. Saunders. That is correct. 

Mr. Carrico. We have a statute which says that representation 
shall be given to the party casting the next highest vote at the 
preceding election for judges of election, but there is no provision 
in our statute providing that the Republicans shall have representa- 
tion on the electoral boards, who have the appointing of the judges 
of election, and of course they appoint whoever they see fit. 

Mr. Howell. Do I understand you to say that the people are not 
informed until the da}'' of the election who are the candidates? 

Mr. Carrico. No, sir; they are not informed as to who appears on 
the ballot or as to the ballot. You do not know what kind of a bal- 
lot you have until you go in to vote. I think that will be conceded. 

Mr. Nelson. You do not know who the candidates are? 

Mr. Carrico. We do not know in what shape their names will 
appear on the ballot, whether at the bottom or at the top. They must 
come in consecutive order for the same office. 

Mr. Nelson. There is no requirement for publication ? 

Mr. Carrico. None in the world; in fact our law prohibits it. 

Mr. Hamill. When you go into the polling place, how many men 
have control of the ballot box; how many judges or officers are there 
there ? 

Mr. Carrico. There are three judges and two clerks. 

Mr. Hamill. And what is the complexion politically of the three 
judges and two clerks ? 

Mr. Carrico. In some places they are all three Democrats, the 
judges; most every place both the clerks are Democrats. In one or 
two places the Republicans had all three Republican judges, because 
there were no Democrats to fill the place. 

Mr. Saunders. I deny the latter proposition in part. 

Mr. Hamill. There is a requirement, though, that the electoral 
board appoint a bipartisan board of judges; is that correct or not? 

Mr. Carrico. That is the law. 

Mr. Hamill. They are supposed to be bipartisan ? 

Mr. Bennet. Not bipartisan, but a minority representation. 

Mr. Carrico. A minority representation. 

Mr. Bennet. One to two ? 

Mr. Carrico. One to two. 

Mr. Bennet. There is no provision about clerks ? 

Mr. Carrico. There is no provision about clerks, but they are 
appointed as Democrats. Another provision is that all persons 
registering prior to 1904 may have the assistance of either one of 
the judges in the preparation of his ballot. 



PARSONS VS. SAUNDERS. 15 

Mr. Saunders. In that connection, Mr. Hamill, I wish to say that 
the clerks have nothing in the world to do with the hallots or the 
ballot boxes. They merel}^ keep the tally of the voters on the poll 
books. 

Mr. Carrico. They keep the poll books, keep the names of the 
voters. I do not know how it is in Judge Saunders's county, but 
in our county they have a good deal to do as to who shall vote and 
who shall not. 

Mr. Saunders. That is not so in my county, nor is there anything 
of that sort in the record. 

Mr. KoRBLY. If some one had made the statement that Mr. 
Saunders or Mr. Parsons was insane, would it have devolved upon 
the secretary of state to decide upon the question of his sanity ? 

JMr. Carrico. No, sir; I think not. I say this: Had either been an 
adjudged lunatic and the secretary of the Commonwealth had been 
informed of it, then he should have left the name off, because he was 
not a cojnpetent voter; he would not be competent to hold office. 
This point was put up to the secretary of the Commonwealth, and 
you will find it m the record : It was asketl if a woman would send 
m her name if he would place her name on the official ballot, and he 
said he would not. 

Mr. Nelson. Is there any provision of law, any precedent, where 
a secretary of state is permitted to exercise discretion as to whom he 
will put on the ballot ? 

l^Ir. Carrico. No, sir; but he must receive legal notice of the 
candidacy. 

Lir. Nelson. Having received that, is there anything in law that 
gives him the power to say that he will or will not? 

]\lr. Carrico. No, sir; i think not. If he had received a legal 
notice, I think he should have placed the name on the ballot; but 
my contention is that, being a lunatic, Mathew could not send any 
legal notice; that the notice was invalid in its inception, and he did 
have the right to leave off a man who has no riglit on the ballot. 
For instance, if a man from North Carolina should send in his name, 
he certainly could not become a candidate in Virginia; the secretary 
would certainly have the right to leave his name ofT the official ballot. 
He would have received no legal notice from a man who could become 
a legal voter. 

Mr. Howell. Is it shown that the secretary had suilicient evidence 
to prove the lunacy of Mathew ? 

Mr. C^ARRico. Yes, sir; the records of the State show it there. He 
was informed by the secretary of the electoral board of Franklin 
County that this man was a lunatic; that he was in the hospital for 
the insane at Marion, Va. The records in Richmond there, which the 
secretary of the Commonwealth keeps, show that this man was a 
patient in the hospital for the insane at Marion. 

Mr. Bennet. What is the name of the man who wrote him the 
letter ? -^ 

Mr. Saunders. W. D. Martin. 

Mr. Carrico. That is right, W. D. Martin. 

Mr. Tou Velle. Suppose the Constitution of the United States had 
placed certain restrictions upon qualifications, or had defined the 
qualifications necessary to be a candidate to hold the office of Con- 



16 PAESONS VS. SAUNDERS. 

fressman; it having once laid down what those qualifications should 
e, can they be extended or limited by state authority ? 

Mr. Carrico. I think not, sir. The Congress of the United States 
is the sole judge of its Members; the sole judge of their qualifications. 

Mr. Tou Velle. But say the Constitution of the United States 
had limited or passed on the matter; then what would you say ? 

Mr. Carrico. Certainly the Congress of the United States is con- 
trolled by the Constitution, and Congress could not pass a law that was 
repugnant to the Constitution of the United States. 

Mr. Tou Velle. I do not think you caught my question. If the 
Constitution of the United States had put a limit or had designated 
who might or who might not hold this office, could the State then 
pass a law that would put a further limitation ? 

Mr. Carrico. I think not, sir; no, sir. 

Mr. KoRBLY. You do not contend, Mr. Carrico, that the secretary 
of state was acting in other than a ministerial capacity ? 

Mr. Carrico. In a certain way he was acting in a ministerial 
capacity, yes; but the law defines how these people may get on the 
ballot, my contention is, and they must give a legal notice. 

Mr. KoRBLY. Is the secretary of state charged with the duty of 
ascertaining by judicial process whether or not this is a legal notice, 
whether or not this man is insane, whether or not the Elliot Mathew, 
who has filed the petition is the same Elliot Mathew who is and has 
been incarcerated because of his insanity ? 

Mr. Carrico. No, sir; but then when he is informed of that 
through the proper officials he should take cognizance of it. 

Mr. Bennet. Is it not a fact, as I recall the Constitution of the 
United States, that the Constitution has done exactly that thing, 
and that under the description of who can come to Congress— a woman 
could from Utah, Wyoming, Idaho, or Colorado, because she is quali- 
fied to vote for a member of the legislature in those states; whereas 
a woman could not come to Congress from New York, and I presume 
from Virginia, because in those States she is not qualified ? 

Mr. Carrico. Yes; that is so. 

Mr. Bennet. In other words, the Constitution of the United States 
permits each State to prescribe in that indirect way the qualifications 
of the persons who shall represent that State in the Congress of the 
United States. 

Mr. Carrico. That is true. . . 

Mr. Bennet. And therefore, if your state constitution prohibits a 
lunatic from voting, it possibly prevents a lunatic from running for 
Congress ; that is your point ? i ' re • i 

Mr. Carrico. Yes; that is, that he could not get on the official 
ballot because all of his acts are invalid, and that therefore he could 
not give a legal notice in order to get on the ballot, and can not be 
voted for. 

The Chairman. What are the qualifications a man has to possess 
under the laws of your State to run for office or to be elected to office ? 

Mr. Carrico. In our State he must be 21 years of age 

The Chairman. Must he be a qualified elector? 

Mr. Carrico. Yes, sir ; our constitution says only voters can become 
a candidate for office. But the point I make is that his name should 
not be on this official ballot, because he did not get on there accord- 
ing to law. The law requires a legal notice to get on there. This 



PAKSONS VS. SAUNDEES. 17 

man being incapable of" performing a legal act, he could not give a 
legal notice to the secretary of the Commonwealth in order to get on 
the ballot, and therefore, being on there illegally, his name is a nul- 
lity, and when either Judge Saunders or Mr. Parsons was marked off, 
then there was only one name remaining in law on there; the other 
name was a nullity and counted for nothing, and therefore it was 
not a void ballot, but should be counted for either one or the other just 
as it was marked. I think the law is very clear on that proposition. 

The (^HAiRMAN. Wliat would you say about the ballots that have 
Mr. Mathew's name on alone, the only name voted for? 

Mr. Carrico. I think they are void ; I do not think any one was 
voted for. His name had no right on the ballot because his name was 
not placed on there in a legal manner, and therefore when he was voted 
for alone that ballot was void. 

The (Chairman. The ballots are printed in this way, Saunders, 
Parsons, Mathew ? 

Mr. Carrico. Yes. 

The Chairman. Now, we find the name "Parsons" scratched off. 
How can we determine whether the voter wanted to vote for Saunders 
or Mathew ? 

Mr. Carrico. Simply from the fact as, I take it, no one wanted to 
vote for a lunatic, and those who did vote for him voted inadvert- 
ently. 

The Chairman. Suppose they did not know he was a lunatic, as a 
great many voters of the State did not know ? 

Mr. Carrico. If they did not know he was a lunatic, they did not 
know him at all, knew nothing about him, and certainly did not want 
to vote for him. My judgment is that when both Saunders and Par- 
sons were marked out the man intended to vote for no one, and it 
certainly leaves the ballot void, because Elliott Mathew has no right on 
the ticket. 

Mr. Nelson. Right there, Mathew did receive 15 votes, I believe. 

Mr. Carrico. Yes. 

Mr. Nelson. How are we to know ? Have you any rule to guide 
us as to whether, when a man struck one of these out, he did not in- 
tend in these other cases, possibly, to vote for Mathew, as well as in 
the 15 where he was voted for? 

Mr. Carrico. There is no rule. I have never heard of a case just 
like this being presented in any court or before a committee of 
Congress. But in the record here we show you that many of these 
voters have testified that they did mark their ballots ; some of them 
have testified that they marked out Parsons and left Elliott Mathew 
and Judge Saunders on, and they intended to vote for Judge Saunders, 
but that they did not know a lunatic was on there, failed to notice 
that point, and failed to mark his name out, and vice versa. At 
Comers Rock, in Grayson County, the report of the subcommittee 
shows there were 15 ballots returned in which Judge Saunders's name 
was marked out and Mr. Parsons's and ElUott Mathew's left on. We 
put the judge of election on from that precinct, and we put several of 
the voters on. The judge of election said he did not know there were 
but two names on the ballot, and did not discover it until away up 
in the morning, and that he had been marking ballots for men who 
wanted to vote for Mr. Parsons by simply marking out Judge Saun- 
ders's name. Several of them testified they went in to vote for Mr. 

38069—10 2 



18 PARSONS VS. SAUNDERS. 

Parsons, and they did not know there were but two names on the 
ballot, never had heard of but two names, and they simply marked 
out Judge Saunders and deposited the ballot. You have that 
record before you. 

Mr. Howell. Is there any designation on the ballot to indicate 
the political party to which a candidate belongs ? 

Mr. Carrico. No, sir; there is no emblem on the ballots whatever 
to show whose they are, in any way. 

Mr. Bennet. And before the voter goes into the booth he has no 
absolute knowledge of the order in which the names will appear on the 
ballot ? 

Mr. Carrico. He has not; nor the number that will appear on the 
ballot. 

Mr. Hamill. Are the ballots permitted to be distributed around 
before the voting occurs ? 

Mr. Carrico. No, sir. The ballots are sealed at the office of the 
printer. The printer is sworn not to divulge the names or the order 
in which they appear on the ballot. The ballots are distributed by 
the electoral board in sealed packages, not to be opened until opened 
in the presence of the three judges on the morning of election, and no 
one is permitted to be in the room while the ballots are being opened 
and counted, and no one is permitted to see the ballots until he goes 
in to vote. 

Mr. Bennet. After the man goes in to vote, if I am correct, if he 
comes out and tells anyone how the names are printed, that is a 
violation of your statute, is it not ? 

Mr. Carrico. No, sir; that is not a violation of the statute; it is a 
misdemeanor to bring the ballot out of the polling place, so that no 
one can exhibit a ballot. No one sees a ballot until he goes in to 
vote, and only tha ballot that he votes; he may see the pile lying 
there, but he is permitted to examine only the ballot he votes. 

Mr. Hamill. But if you remember the order in which the names 
appear you could tell them without violation of the law ? 

Mr. Carrico. Yes. 

Mr. Howell. As a practical question, when the vote is cast in any 
precinct or district, is it generally a straight party vote, to a large 
extent ? 

Mr. Carrico. Yes, sir; to a large extent, it is generally a straight 
party vote. 

Mr. Bennet. That is not the universal rule; that was not our 
observation. 

Mr. Carrico. You will find there are several ballots in which the 
voter voted for Mr. Bryan and Mr. Parsons, and for Mr. Taf t and Judge 
Saunders, but I do not think you will find what I call a great many of 
them. 

Mr. Howell. What I had in mind was, where these 15 votes were 
cast for Mr. Parsons and Mr. Mathew, did Mr. Parsons 

Mr. Bennet. Fifteen were cast for Mathew alone. 

Mr. Howell. In what district, Mr. Carrico ? 

Mr. Carrico. At Comers Rock, in Grayson County. 

Mr. Howell. At Comers Rock, there were some 15 ballots with 
two names on them for Congress. What do the returns show in that 
district as to the number of votes Mr. Parsons received as compared 
with his party associates on the ticket ? 



PARSONS VS. SAUNDERS. 19 

Mr. Carrico. Prt^sideiit Talt ran ahead of Mr. Parsons there some 
votes — I do not know how many, but some votes — so that it shows 
that those voters were voting for Mr. Taft, and were marking Judge 
Saunders out, and I think that clearly shows that the intention of the 
voter was to vote for Mr. Parsons, and, according to my contention, 
Elliot Mathew's name being invalid on the tick'-'t, they did vote for 
Mr. Parsons. 

As to people being acquainted with the ballot, and as to you seeing 
the names and coming out and telling your friends about it, it is a 
misdemeanor there to bring any copy of the ballot out and exhibit it 
to your friends, or show the order m which the names appear. 

Mr. Hamill. But if you retain the order in memory and disclose 
it orally after you get out, that is no violation of the law ? 

Mr. C'arrico. That is no violation of the law, as I understand it. 

Mr. Tou Velle. Would not that law or provision in question tend 
to induce men to be more careful how they marked their ballots ? 

Mr. Carrico. It probably might do that, sir, but a great many 
men up there who have registered since 1904 have to mark their own 
ballots. Of course, they have to be able to read and write before 
they can register, but they are not very good scholars, and a great 
many of them do not understand the ballots after they go in tliere. 
Besides that, a great many wlu) have registered before try to depend 
on their memories. They have the right to call the judge, but they 
do not do it simply because of the fact that they do not want some 
of the judges to know how they do vote, and they go in and try to 
mark their own ballots, and it is shown there at Comers Rock that 
the judge whom the Deraiocratic electoral board gave us was not 
capable of marking the ballots himself. 

As to the illegal votes cast throughout the district, as I said in 
my opening statement, every man must have paid all the poll tax 
assessed or assessable against him for the three years next preceding 
the election in which he offers to vote at least six months previous 
to that. There is this exemption — that is, old soldiers who have 
served in the civil war between the States, either on the Union or 
Confederate sides. They do not have to pay a poll tax as a pre- 
requisite to voting. All others do have to pay a poll tax. As to 
whether they should be on there three years or not, the registration 
book shows when they registered and their age. It makes no dif- 
ference if a man registers when he is a citizen of Grayson County; if 
he registers at the age of 28, he can not pay one poll tax and be 
entitled to vote. A young man just coming 21 years of age can pay 
his poll tax and take a receipt which will pay off his poll tax the 
next year and exhibit that without being on the poll-tax list. 

Mr. Bennet. What is that year, the calendar year commencing 
in January, or some fiscal year down there ? 

Mr. Carrico. Our poll taxes are assessed as of the 1st day of 
February each year. 

Mr. Bennet. So that a man to vote this fall must have paid the 
poll tax that came due February 1, 1908, 1909, and 1910; is that right? 

Mr. Carrico. If he votes in 1911; yes. 

Mr. Bennet. If he votes this coming fall ? 

Mr. Carrico. Yes; if he votes this fall. 

Mr. Saunders. No, Mr. Bennet, that is a slight misapprehension. 
If he votes this fall, it would be the tax of 1907, 1908, and 1909. 



20 PAESONS VS. SAUNDERS. 

Mr. Carrico. Yes; if he votes this fall. 

Mr. Bennet. He does not have to pay the poll tax that came 
due on February 1, 1910? 

Mr. Carrico. No. 

Mr. Slemp. That has to be paid this year, but it is counted a year 
back. 

Mr. Bennet. As I understand, it has to be paid six months 
before the election? 

Mr. Slemp. It has to be paid within six months; this year, 1910. 

Mr. Carrico. To have voted in this congressional election the 
voter who was assessed or assessable with taxes should have paid 
for the years 1905, 1906, and 1907 to have voted m the fall of 1908, 
and he must have paid them six months previous to that time. 

Mr. Saunders. Provided, of course, in that connection, he is 
liable for three years' taxes. 

Mr. Carrico. I say, if it is assessable against him; if it is assessed 
or assessable against him. Say you had been living there six years 
and were assessable with taxes, and the assessor missed assessing 
you, then the law provides that you can go to the clerk of the county 
court and get a certificate showing that you registered in a certain 
precinct, and take that to the treasurer and pay your poll tax, and 
thereby get on the list. 

Mr. Bennet. It must have been paid prior to the 3d of May, 
1908? 

Mr. Carrico. Yes, sir; the 3d of May, 1908, was the last day the 
taxes could have been paid to have voted in this congressional election. 
Right in that connection my contention is that a man, in order to vote, 
must have been an old soldier, or must have been a young man com- 
ing of age since the 1st day of February, 1907, or he must have been 
on the tax-paid list in order for him to have been a qualified voter. 
I understand that Judge Saunders's contention is that where a man 
probably had paid his taxes six months prior, and brings up his 
tickets or certificates that he did pay that poll tax, he is entitled to 
vote. The constitution provides who may vote, and on the tax-paid 
question it says that all persons assessed or assessable with taxes 
must have paid them at least six months previous to the election for 
three years prior thereto. That fixes the qualification of a man to 
vote. The constitution, as well as the laws, section 82 of the Code, 
provides that this tax-paid list shall contain a list of all the persons 
who have paid this tax. It provides further that if by inadvertence 
a man's name is left off, this list is posted for thirty days at each 
precinct in the county, and that he may apply to the circuit court 
by giving the treasurer five days' notice, which petition of the voter 
shall be heard either in term time or in vacation, immediately to de- 
termine whether his name shall go on the tax-paid list. If he shows 
he has paid his taxes properly, his name is ordered by the court to 
go on this list. That is the mode of proving it. The constitution 
and the statutes passed under it say this, that the tax-paid list is 
conclusive evidence of the facts stated therein for the purpose of 
voting. Those tax-paid lists are lists containing the names of all per- 
sons who have paid their poll taxes prior to May 3, 1908, in order to 
entitle them to vote, and so forth. They are placed on that fist for 
the number of years for which they have paid. The registration Hst 
shows whether they should be on there for more years than that. 



PARSONS VS. SAUNDERS. 21 

Mr. KoRBLY. In the event a voter is challenged, this list that his 
name is on is conclusive evidence oi" his right to vote ? 

Mr. Carrico. Yes, sir; if he is not on there, I take it it is con- 
clusive evidence he has no right to vote, from the simple fact that 
prior to 1908 — the law is not so now, but for purposes of this con- 
test, prior to 1908 a poll tax receipt was not required to be dated — 
that is the date of payment. Of course, it show^ed the year for which 
the poll tax was assessable, but the poll-tax receipt was not required 
to be dated, and if the legislature had not intended that this poll-tax 
list was conclusive it certainly left a gap for a good deal of fraud 
there. I could have paid my poll taxes the day before election and 
have gone in and sworn I paid them. In many instances I could 
have just said, "Here is my poll tax; here are the receipts." 

Mr. KoRBLY. In the event some elector's name is left off the list 
that ought to be there, he is precluded from voting '^ 

Mr. Carrico. No, sir; that poll-tax list, I tell you, is required to 
be posted at every precinct in the county, or in the city, in the wards 
of the city, for thirty days. He has the right to examine that list, 
and if his name does not appear on there, and he has paid his poll 
tax, he gives the treasurer five days' notice and petitions the circuit 
court, which petition the circuit court must hear either in term time 
or vacation immediately, and if he shows he has properly paid his 

Eoll tax, the court orders him to be placed on the poll-tax list. If 
6 neglects that, he is not entitled to vote. 

Mr. KoRBLY. You claim that excludes him ? 

Mr. Carrico. We claim that excludes him. 

Mr. KoRBLY. Even though he has cleared away his taxes and 
ought to be on the list ^ 

Mr. Carrico. Yes, sir. 

Mr. Bennet. As I understand you, at that time the poll-tax 
receipts each voter received did not bear the date when the poll tax 
was paid, but simply the year for which it was assessable ? 

Mr. Carrico. Yes, sir; that is all. The law did not require them 
to date the poll-tax receipt. A man paying his tax the day before 
election could get his receipt and come in and say, "Here is my 
receipts," and he would be allowed to vote. 

Mr. Bennet. In other words, a man paying on the 2d of Feb- 
ruary got exactly the same form of receipt as the man paying on 
the 2d of May '? * 

Mr. Carrico. Yes. I want to state a little further. The treasurer 
returns these taxes delinquent along about August, some time in 
August, but up to that time he has the tax receipts, and a man can 
pay them on up from the 3d of May to the time he returns them 
delinquent, and he gets the same kind of receipt I would get if I paid 
them immediately after the receipts are made out. I should say that 
was the condition at that time. The legislature in 1908 reciuired that 
all poll-tax receipts should be dated the date of payment hereafter. 
But for the pyrposes of this contest, and prior to 1908, the poll-tax 
receipts were not required to be dated, and were not dated tne date 
of payment of them. They just showed the year for which they were 
assessable. The constitution then goes on further and says that the 
legislature may, from time to time, require such further proof of the 
payment of the poll taxes as they shall see fit. The legislature have 
not seen fit to require any further proof than the poll-tax list. Then 



22 PARSONS vs. SAUNDERS. 

it goes on to state how a man from a different county coming into 
another county in the State may vote. If he has come into tlie county 
in such a time that he should have paid his taxes in the county in 
which he offers to vote, then his name must appear on the poll-tax 
list in that county for that year. In addition to that he must have 
the receipt from the treasurer of the county from which he moved, 
showing that his poll taxes had been paid there six months prior to 
the election. 

Mr. Nelson. Does he have to bring the poll-tax list with him from 
that county ? 

Mr. Carrico. No, sir; I say he must have a receipt from the treas- 
urer of the county from which he had moved showing that he had 
paid his taxes for six months prior to the election. Mind you, it is 
not like a tax ticket; we get what we call a tax ticket. But he must 
show affirmatively that this man has paid his taxes in that county 
six months previous to the election in which he offers to vote in the 
county he has moved to; that is, a certificate from the treasurer 
that he has paid in that county six months prior to the election. But 
where a man is, say, in Grayson County for five years, and he has paid 
for three years there, he must be on the tax-paid list there for three 
years, and if he is not, according to Judge Saunders's contention, and 
he brings in his tax receipts, no matter when they are paid, if they 
were paid only three months before the election, if he brings his tax 
receipts or comes in and offers to swear that he paid them six months 
previous to that time he is a legal voter. 

Mr. Saunders. That is not correctly stated. 

Mr. Carrico. That is what I understood to be your statement. 

Mr. Saunders. I do not mean you are misrepresenting me inten- 
tionally; that is not what I mean at all. I affirm that if a voter is 
not on the tax list for three years but before offering to vote estab- 
lishes the fact that he has paid his taxes as provided by law he will 
then be entitled to be admitted to cast his ballot. The payment of 
the taxes required within the time prescribed and not the appearance 
of his name on the list is the prerequisite. 

Mr. Carrico. Suppose that he comes in and offers to state that he 
has paid them in time; your contention is that he is entitled to vote ? 

Mr. Saunders. If, as a matter of fact, he satisfies the judges he 
has paid his taxes in time he is entitled to vote. 

Mr. Nelson. May I get that thing plain? You contend a man's 
name has to be on the poll-tax list, Mr. Carrico, and Judge Saunder s 
says if he brings in his receipt at any time before election he is entitled 
to vote ; is that it ? 

Mr. Carrico. Or offers to swear. 

Mr. Saunders. If he establishes the fact of payment, Mr. Nelson, 
whether by the tax list or otherwise. 

Mr. Carrico. I claim the constitution fixes the right of a man to 
vote. I claim further, it goes on and, together with the statutes passed 
under it, fixes the proof, or how the man may prove his right to vote, 
and in no other way can he prove he has paid his poll tax. 

Mr. Hamill. Suppose, for instance, a man pays his poll tax and 
then goes off traveling and returns two days before election, and has 
not time to give the five days' notice and make his petition to the 
circuit court; would that debar him from voting, in your opinion? 

Mr. Carrico. If he was not on the tax list. 

Mr. Hamill. If he was not on the poll-tax list? 



PAESONS VS. SAUNDERS. 23 

Mr. Carrico. It certainly would, I think. 

Mr. Hamill. Is there no provision, such as they have in other 
States, whereby lie may o;o to the court, or to some tribunal, even on 
election day, show he is qualified, and get a certificate entitling him 
to vote ? 

Mr. Carrico. No, sir; the poll-tax list at the end of thirty days 
after it is posted is closed. Many men are disfranchised down there 
because they do not do that. 

Mr. Bennet. The same is true in our State of New York. If a 
man is not in the city on one of the four days of registration — we 
only have four days — be he ever so qualified, he could not vote on 
election day. 

Mr. Carrico. Yes. It is the same way as to the poll tax down 
there. My contention is that the law requires that he be on there for 
the years that he is assessed or assessable with taxes, and that if he 
neglects that part of it, the result is that he can not oi!"er any other 
proof than the tax-paid list that he has paid them, because the tax- 
paid list says, "Here is a list of all parties who have paid their poll 
taxes six months prior to the 3d day of May, 1908, in order to 
entitle them to vote." If that is a list of all of them, although he 
may have paid his taxes, and although he may have been entitled 
to get on there, but has neglected to go to the court and furnish the 
judges of election with the proof that the constitution and the 
statutes say he shall furnish them vvith, they are bound to exclude 
him from voting. He excludes himself. 

Mr. Bennet. The contention as between you and Judge Saunders 
is, you contend that the constitution and the statutes prescribe an 
exclusive method of proof, and Judge Saunders contends that in 
addition to the tax list provided by the statute and the constitution 
other proof of payment can be adduced ? 

Mr. Saunders. That is an absolutely correct statement of the 
difference betw^een us. 

Mr. Carrico. Yes, sir; that is what Judge Saunders contends, and 
I contend that the constitution and the statutes preclude any other 
mode of proof; that the constitution says that this poll-tax list shall 
be conclusive evidence of the facts therein stated for the purpose of 
voting, and when it states that it is a list of all persons wdio have 
paid taxes, and this person being off the poll-tax list does not apply 
to the court within the thirty days which the law gives him the right 
to apply in, and does not place himself on the list, he is excluded from 
voting. 

Mr. Nelson. That has never been decided by your courts ? 

Mr. Carrico. No, sir; it has never been. 

Mr. Saunders. It has been decided in the nisi-prius courts. 

Mr. Howell. What if an alien should pay his poll tax; would he 
be entitled to vote ? 

Mr. Carrico. No, sir; our constitution excludes aliens from voting. 

Mr. Howell. Who would pass upon the matter ? 

Mr. Carrico. An alien wdio has not been naturalized can not vote. 

Mr. Howell. I know, that is the general law; but what is the 
procedure in your state to determine the right of a man to vote, other 
than the paying of a poll tax ? Is there any registration list ? 

Mr. C'ARRICO. Y^es, sir; there is a registration list. He must be 
registered, must be over 21 years of age, and must have paid the poll 
tax, unless, as I say, he is an old soldier. 



24 PARSONS VS. SAUNDERS. 

Mr. Howell. Then, if he is on the registration hst and not on the 
poll-tax list, what would be his status ? 

Mr. Carrico. If he is not on the poll-tax list and he does not fur- 
iiish the evidence required by the constitution and the law, as I see 
it, even if he had paid his poll tax, he would be excluded from voting, 
although he would be on the registration list. It is not every man 
who is registered who is entitled to vote. 

Mr. Bennett. Does a man have to register every year ? 

IVir. Carrico. No, sir. Our registration lists are preserved up to 
the time a man dies or moves away. 

Mr. Bennett. Can a man register any day in the year he pleases ? 

Mr. Carrico. A man may register any day in the year he pleases 
up to within thirty days of the election. Thirty days before each 
election the registration books are closed, and no one can get on the 
registration books between that and the election. 

The Chairman. Having once registered, he always remains a reg- 
istered voter as long as he is in the county ? 

Mr. Carrico. Yes, sir; he remains a voter as long as he pays his 
poll tax. 

Mr. Saunders. There is one exception to that, which will appear 
in this case. If a man goes out of the State and becomes a citizen 
elsewhere and then returns, his absence will strike his name from the 
registration books; he has to reregister in order to vote on his return. 
But mere absence from the State, without acquiring citizenship, does 
not affect his voting rights. 

Mr. Carrico. If he moves out permanently. A man who moves 
out temporarily without intending to make his home elsewhere does 
not have to. 

Mr. Saunders. That is what I mean. 

The Chairman. After having once registered, as long as he remains 
in the county he is a qualified voter as long as he complies with the 
requirements of your constitution and state law ? 

Mr. Carrico. Yes, sir; that is right. The evidence is very volu- 
minous, and it is very hard to pick out who has paid his poll tax. There 
may be some mistakes in the brief of evidence; I notice there are 
some mistakes in ours, and I notice Judge Saunders has made some 
in his. In some instances we do not agree with the contention as to 
whether a voter is a legal voter or not on the evidence that is in the 
record. I think it would be hardly fair to the committee for me to 
take up each name and discuss it separately, because if I did I would 
have to discuss it all day. 

Mr. Howell. When a voter presents himself to vote in your State, 
what do the judges refer to to determine his qualifications, the regis- 
tration list or the poll-tax list ? 

Mr. Carrico. They have the tax list and the registration books 
right before them; it is determined by both. 

Mr. Korbly. How is the fact that he was a soldier shown ? 

Mr. Carrico. On the registration book there is a column there that 
says, "Is he exempt from the payment of poll taxes as a prerequisite 
to voting r' It is either ''Yes," or "No," under that. If it is "Yes," 
it is supposed he is an old soldier, because they are the only ones who 
are exempt, and he is allowed to vote. 

(Thereupon, at 12.05 o'clock p. m. the committee took a recess 
until 2 o'clock p. m.) 



PARSONS VS. SAUJSDEllS. 25 

AFTER RECESS. 

The committee met at 2 o'clock, p. m., pursuant to the taking of 
recess. 

ARGUMENT OF J. H. CARRICO, ESQ., IN BEHALF OF THE CON- 
TESTANT'S CONTENTION. 

Mr. Carrico. I want to refer back a moment to tlie EUiott Mathew 
question. I did not have the constitution before me at the time I was 
going over it. I want to read you a short portion of the constitution 
as to who is ehgible to hokl office in Virginia. 

It says that the following persons shall be excluded from registering 
and voting: 

Idiots, insane persons, and paupers; persons who, prior to the adoption of this 
constitution, were disqualified from voting, by conviction of crime, either within or 
without this State, and whose disabilities shall not have been removed; persons con- 
victed after the adoption of this constitution, either within or without the State, of 
treason, or any felony, bribery, petit larceny, obtaining money or property under 
false pretenses, embezzlement, forgery, or perjury; persons who, while citizens of 
this State, after the adoption of this constitution, have fought a duel with a deadly 
weapon, etc. 

That will not come up in this case. And then section 32 says: 

Every person qualified to vote shall be eligible to any office in the State, or of any 
county, city, town, or other subdivision of the State, wherein he resides, except as 
otherwise provided in this constitution, and except that this provision as to residence 
shall not apply to any office elective by the people where the law provides otherwise. 
Men and women 18 years of age shall be eligible to the office of notary public, and 
qualified to execute the bonds required of them in that capacity. 

That shows that a lunatic is not eligible to office at all, because he 
is excluded from registering an<^l voting, and only people eligible to 
vote can hold office except the office of notary public, in which case 
persons at least 18 years of age, including ladies, may hold the office 
of notary public. "Those are the only exceptions. 

Now, gentlemen, as to the question of proof of whether a man has 
paid his poll tax as required by law, so as to qualify him to vote, as to 
the proof, I want to read you the constitution on that. 

Section 38 of the constitution reads: 

After the 1st day of January, 1904, the treasurer of each county and city shall, at 
least five months before each regular election, file with the clerk of the circuit court- 
of his county, or of the corporation court of his city, a list of all persons in his county 
or city who have paid, not later than six months prior to such election, the state poll 
taxes required by this constitution during the three years next preceding that in 
which such election is held; which list shall be arranged alphabetically, by magis- 
terial districts or wards, shall state the white and colored persons, separately, and 
shall be verified by the oath of the treasurer. The clerk, within ten days from the 
receipt of the list, shall make and certify a sufficient number of copies thereof, and 
shall deliver one copy for each voting place in his county or city to the sheriff of the 
county or sergeant of the city, whose duty it shall be to post one copy, without delay, 
at each of the voting places, and within ten days from the receipt thereof to make 
return on oath to the clerk as to the places where and dates at which said copies were 
respectively posted, which return the clerk shall record in a book kept in his office 
for the purpose; and he shall keep in his office for public inspection, for at least sixty 
days after receiving the list, not less than ten certified copies thereof, and also cause 
the list to be published in such other manner as may he prescribed by law; the 
original list returned by the treasurer shall be filed and preserved by the clerk among 
the public records of his office for at least five years after receiving the same. Within 
thirty days after the list has been so posted, any person who shall have paid his capi- 
tation tax, but whose name is omitted from the certified list, may, after five days 



26 PABSONS VS. SAXJNDEKS. 

written notice to the treasurer, apply to the circuit court of his county, or corporation 
court of his city, or to the judge thereof in vacation, to have the same corrected and 
his name entered thereon, which application the court or judge shall promptly hear 
and decide. 

Then it goes on to state: 

The clerk shall deliver, or cause to be delivered, with the poll books, at a reason- 
able time before every election, to one of the judges of election of each precinct of 
his county or city, a like certified copy of the list, which shall be conclusive evidence 
of the facts therein stated for the purpose of voting. The clerk shall also, within 
sixty days after the filing of the list by the treasurer, forward a certified copy thereof, 
with such corrections as may have been made by order of the court or judge, to the 
auditor of public accounts, who shall charge the amount of the poll taxes stated 
therein to such treasurer unless previously accounted for. 

This relates entirely to the proof that is to be offered, showing that 
the man has paid his poll tax, because the constitution in the winding- 
up clause says: 

Further evidence of the prepayment of the capitation taxes required by this consti- 
tution, as a prerequisite to the right to register and vote, may be prescribed by law. 

Now, then, if that did not have reference to the evidence that is 
to be adduced before the judges of election, showing the payment 
of the tax, it certainly would not say that further evidence of the 
prepayment of the capitation taxes required may be prescribed by 
law. The legislature has not seen fit to require any further evidence, 
but it does require that each man shall be on that tax-paid list if 
he does not come under the exemption by reason of being an old 
soldier or otherwise, or if he has not just become 21 years of age, in 
which latter case he votes on a certificate from the treasurer that he 
has paid his poll tax. 

Now, gentlemen, assuming that I am correct in that position, you 
will find that a great many men voted at the different precincts 
throughout the district, whose names are too numerous for me to 
mention to the committee, and they will have to go over the names 
themselves. I shall mention a few of them, however, who voted 
without being on the tax-paid list; some of them swore that they 
paid their poll tax, others produced tax receipts that they had paid 
their poll tax, while others came in and simply said, ''I have paid my 
poll tax," and on that showing the judges allowed them to vote. 

Mr. Nelson. Is this construction that you are laying down here 
something new, or what has been the practice by Republicans or 
Democrats as to voting by showing that they had at some time or 
other paid the poll tax before election ? 

Mr. Caerico. Well, sir, I can not answer that except as to my own 
county. 

Mr. Nelson. Well, as to your own county? 

Mr. Carrico. As to my own county, a man whose name does not 
appear on the poll-tax list and who the registration books shows has 
been registered, or is old enough to be on there, is excluded from 
voting. 

Mr. Nelson. That is the fixed rule in your county ? 

Mr. Carrico. Yes; that is the fixed rule in my county. Neither 
Republicans nor Democrats are allowed to vote unless their names 
appear on the poll-tax list. I say that is a fixed rule; it does not hold 
good at every precinct in the county. 

Mr. Nelson. You are speaking of your own individual precinct ? 



PARSONS VS. SAUNDERS. 27 

Mr. Carrico. Well, it is the contention of both parties in my 
county that that is the rule, but the judges of some precincts do not 
adhere to that rule. 

Mr. Nelson. That is what I wanted to find out. 

Mr. Carrico. The fact that a man is on the registration books, 
as I said previously, is not conclusive evidence that he has a right to 
vote. I think we are agreed on that. [Reading:] 

Section. 21. Any person registered under either of the last two sections shall 
have the right to vote for members of the general assembly and all officers elective by 
the people, subject to the following conditions: 

That he, unless exempted by section 22, shall, as a prerequisite to the right to vote 
after the 1st of January, 1904, personally pay, at least six months prior to the election, 
all state poll taxes assessed or assessable against him under this constitution during 
the three years next preceding that in which he offers to vote: Provided, That if he 
registers after the 1st day of January, 1904, he shall, unless physically unable, prepare 
and deposit his ballot without aid, on such printed form as the law may prescribe; 
but any voter registered prior to that date may be aided in the preparation of his 
ballot by such officer of election as he himself may designate. 

Mr. Bennet. Is the poll tax uniform throughout the State, and 
does every man know the amount, or does it vary 1 

Mr. Carrico. It is fixed at $1.50. 

Mr. Bennet. For each indivitlual, each year? 

Mr. Carrico. For each individual, each year. Now, according to 
Judge Saunders's contention, the judges of election would be the judges 
of what evidence was sufficient to qualify a man to vote in the event 
that his name does not appear on the poll-tax list. But the consti- 
tution is different. The constitution says that the legislature and not 
the judges of election may prescribe by law^ a different method of 
proving that the man is entitled to vote. The legislature has not 
done it. I take it if the constitution gives only to the legislature that 
right, it certainly does not give it to the judges of election to say what 
manner of proof the}^ wdll receive as to whether a man is qualified to 
vote or not. Therefore I take it that the constitution, the legislature 
not having acted on it, having passed no laws giving any other mode 
of proof, that therefore the constitution is conclusive and the laws 
passed under it quote the language of the constitution in saying what 
proof shall be made as to the payment of the poll tax in order that a 
man may be allowed to vote. 

Mr. Nelson. How^ many general elections have you had imder that 
constitution ? 

Mr. Carrico. The constitution w^as adopted in 1902, and we have 
an election about every year. 

Mr. Bennet. Assuming that your contention is correct, and that 
the judges of election had no right to allow any one to vote unless 
he was on the tax-paid list and that enough men did so vote to change 
the result here, how could this committee ascertain how a man wdio 
voted in violation of the statute voted when he went in the booth ? 

Mr. Carrico. That was the question I was coming to now. That 
is a very hard matter to determine, because in our State it is a secret 
ballot and you can not compel a man to come forward and testify as 
to how he voted. Therefore the only way we could get at it in many 
instances was to prove their politics, to prove with wdiat party they 
affiliated, what party was advocating and maintaining their right to 
vote. That is 'what we did, so far as we could. In a great many 
instances you will find that it has been proved how a man voted; 



28 PAKSONS vs. SAUNDEES. 

either he testified himself or the next best evidence was obtained, that 
he told some one, or he said at the election how he was going to vote 
or how he did vote. As to that McCreary on Elections (sec. 490, p. 
361) says: 

"V^Tiere a voter refuses to disclose or fails to remember for whom he voted it is com- 
petent to resort to circumstantial evidence to raise a presumption in regard to that 
fact. And within this rule it was held in People v. Pease (27 N. Y., 45) "in the 
absence of direct proof, evidence showing to what political party a voter belonged, 
whose election he advocated, whose friends maintained his rights to vote," and kin- 
dred testimony has been held admissible. 

Now, then, you will find further that in Pittsylvania County the 
contestant in his direct testimony asks the witnesses if certain par- 
ties were on the permanent roll. I should explain about the perma- 
nent roll. After the adoption of this constitution in 1902, there was 
in each magisterial district of the county a registration board ap- 
pointed, composed of three people, who registered all parties entitled 
to register. There was a new registration, a general registration of 
the State, and all parties then were registered. Old soldiers were 
allowed to register, sons of old soldiers were allowed to register, and 
then other parties came in under an educational qualification. That 
is, they had to be able to read certain sections of the constitution and 
explain them to the satisfaction of the board before they were allowed 
to register. Of course, that was intended to cut out the negro ; but it 
cut out a good many white men. The electoral board of registration 
which was appointed continued for two years. They continued up 
to 1904. The list of the people that they put on the registration list 
is called the permanent roll. Those people on the permanent roll of 
course must have paid their taxes three years before the election, 
because they had to get on the roll prior to 1904. Now, the con- 
testee, in his brief, says that it is not shown for- what purpose these 
people were attacked, but the}^ could have been attacked for no other 
purpose, because the poll-tax list was filed here showing that they 
were not on that poll-tax list, and they were asked the question whether 
they were on this permanent roll, to show whether they were entitled 
to vote, whether they had paid taxes for three years, and if they are 
not on the poll-tax list for three years and are on the permanent roll, 
it is conclusive evidence that they have not paid the poll tax required 
of them. And, further, the registrar was placed on the stand by con- 
testee's counsel and asked if he had his books there, and he was 
asked if they were not young men who had just become of age, or 
if they were not registered as old soldiers. Those registrars, of course, 
placed as many of those on the list as they could — that is, these 
young men that I have referred to, who had just become voters, or 
old soldiers or sons of soldiers. 

McCreary says : 

In purging the polls of illegal votes the general rule is that unless it be shown for 
which candidate they were cast they are to be deducted from the whole vote of the 
election precinct, of course in the application of this rule such illegal votes would be 
deducted proportionately from both candidates according to the entire vote returned 
for each from said precinct. 

In many instances, it is not shown how the party voted or what 
their politics were. In that instance, I take it, taking the precinct 
and taking the vote for that precinct, that you deduct from each one 
in proportion to the amount they received at that precinct. At 



PAKSONS VS. SAUNDERS. 29 

Stokesland precinct and at Keeling precinct, in Pittsylvania County, 
the contestant did not receive any votes. So I suppose all the illegal 
votes there would be counted from the contestee's majority, because 
certainly the contestant got no benefit from it. In several other pre- 
cincts there he would get from 1 to 6 votes, while the contestee was 
getting all the way from 30 to 80 votes. There were a great many of 
them at Kentuck precinct. I had a list here wliich I found in the 
brief filed with the committee, showing that they are illegal voters. 
As I say, in these counties the tax-paid list will have to be consulted 
along with these briefs, showing that they are not on there. At 
Kentuck precinct there are 17 who voted without having paid the 
proper amount of poll tax and without their names being on the poll- 
tax list for the requisite number of years, because they are nearly all 
shown to have been on the permanent registration list, which is con- 
clusive evidence that they should have paid for three years. 

The Chairman. How many votes did Mr. Parsons receive there ? 

Mr. Carrico. The contestee received 67 and the contestant 4. 

Ml'. Bennet. What county is that? 

Mr. Carrico. That is the Kentuck precinct. 

Mr. Bennet. In Pittsylvania County ? 

Mr. Carrico. Yes, sir. At Ringgold precinct in Pittsylvania 
County, 14 persons voted without having been on the tax-paid list, 
and most all of them are on the permanent roll of voters and 
should have paid for three years. They may appear on the tax-paid 
list for one or two years, but they are not on there for three years. 
They have not paid their taxes for three years, and conseciuently they 
are illegal voters. At that precinct the contestee received 70 and 
the contestant received 5 votes. 

Mr. Bennet. In Kentuck, Mr. Saunders received 77 votes and Mr. 
Parsons 4. 

Mr. Carrico. At Ringgold precinct, in the same county, where there 
were 14 illegal votes, the contestee received 70 votes anc? the con- 
testant 5 votes. 

The Chairman. How many votes in that precinct were challenged 
by reason of nonpayment of taxes ? 

Mr. Carrico. Fourteen. 

Mr. Nelson. That is, that many that you would call illegal ? 

Mr. Carrico. Yes. There were more than that challenged, but 
at the time they were challenged they were not on the poll-tax list 
for the proper number of years; but the contestee in his evidence 
summons the registar and shows that some of them were young men 
and some of them were old soldiers. But of these 14 the regis- 
trar could not testify that they were either young men or old soldiers, 
and consequently they should have paid the tax. 

Mr. Bennet. How many votes were there cast at Keeling pre- 
cinct 

Mr. Carrico. Six illegal. 

Mr. Bennet. Wlien you say illegal, you mean men that were not 
on the tax-paid list ? 

Mr. Carrico. Men that were not on the tax-paid list; yes, sir. 

Mr. Bennet. In that precinct, Mr. Parsons had no votes at all. 

Mr. Carrico. Mr. Parsons had no votes; no, sir. Neither did he 
have any at Stokesland precinct, in which there were 6 illegal votes, 
and 6 at Keeling. At those precincts Mr. Parsons received no 



30 PAKSONS VS. SAUISTDERS. 

votes at all. At Laurel Grove there were two men not on the tax- 
paid list who voted, and the contestee received 48 votes and the con- 
testant 1 vote. 

At Cedar Hill precinct, in Pittsylvania County, there were 4 votes 
that were illegal and the contestant received 2 votes and the 
contestee 20 votes. 

At Dry Fork, in Pittsylvania County, which went Republican, it 
is shown that there were 27 voters who voted without being on the 
tax-paid list. That was shown by the contestee' s evidence. But 
the contestant on his rebuttal evidence shows that 16 of these parties 
were either old soldiers or young men who had just come of age and 
not entitled to be on the tax-paid list. Eleven of the parties who 
were shown by the contestee not to have been on the tax-paid list 
are shown to be strong Democrats. The politics of one of the parties 
is not shown. 

And it goes that way all through the list. 

Now, then, in Grayson County, at Pugh Place precinct, a man by the 
name of Quillen offered to vote. He had secured his transfer thirty 
days before the election, as required by law, and he offered it for 
registration on the day that the Democratic registrar had set for 
registration. But the registrar, finding that he had set less than 
thirty days before the election for registration, refused to register 
anybody, and he refused to register his transfer. 

But our statutes say that where a transfer is secured thirty days 
before election it may be offered on the day of election in the same 
county in which it is secured and be voted on without being registered, 
and the judges of election will place it on the registration books. This 
man Quillen tried to vote, offered to vote for contestant, but was 
refused. 

The contestee in his brief says it was illegal for the registrar to 
refuse to register him, because it was less than thirty days before the 
election when he offered to register. I agree with the contestee there. 
But still this man was a legal voter when he tried to vote on his trans- 
fer, because he had that right. But the contestee is not quite con- 
sistent at the same place, because a Democrat by the name of Young 
offered to register there and he says he should have been registered 
on the same day, and that he would have voted for contestee. I 
grant you that. But I want to be consistent. I say he has no more 
right to register than the man with the transfer, and we claim that the 
man with the transfer had no right to register because our law says 
a man must register thirty days before his election. 

At Rugby precinct there were two parties who offered to vote for 
contestant and whose names were not on the registration list. Rugby 
was a new precinct which had been taken from the Mouth of Wilson 
precinct and had been taken from the Pugh Place precinct. Our law 
provides and makes it mandatory on the registrars at the two precincts 
from which the new precinct is taken to furnish the registrar of the 
new precinct with a list of all the voters who are on his books that are 
within the new territory, and that he shall place them on the books, 
and that they shall be entitled to vote without any effort on the part 
of the voters. Now, then, these parties were registered in the Pugh 
Place precinct. They live within the new territory. It was the duty 
of the registrar to furnish their names to the new registrar, and they 
should have been on the registrar's books. Therefore they are legal 



PAKSONS VS. SAUNDERS. 31 

voters and they should have been received and registered on that day 
by the judires of election. 

We claim tliat the contestant is entitled to those votes. 

There are a good many more points I could go over and name at 
these different places. 

As to the tax-paid list, the contestee claims that in Grayson County 
a good many men were on the tax-paid list, written on there in red ink. 
Now, that is true, and very naturally so. The clerk has this list 
printed when it is furnished to him by the treasurer for the purpose 
of having it posted for the thirty days. That is posted for thirt}'' days, 
and men who have paid their poll tax, finding their names are not on 
the list, apply to the circuit court to have their names placed on the 
list, and when the court sends in that order the clerk natiu'ally, not 
wanting to put the county to the expense of printing a new list, which 
would cost some fifty or sixty dollars, simply places them on there 
with pen and ink — places their names on the list, and they go to the 
judges of election, furnishing them with the evidence as to who is 
qualified to vote. 

At C^omers Rock precinct there were either four or five men on there 
with their names written on the list. The list was duly certified out 
to the judges as being a proper list for them to be guided by as to who 
was qualified to vote. They received the list, as required by law, from 
the clerk, along with the ballots, and they had that list there, and none 
other, to go by as proof, but still they were challenged and not allowed 
to vote at that precinct. 

We claim that contestant is entitled to those votes. They offered 
to vote for the contestant and their names were properly on the list ; 
but because they were written in ink the Democratic judges refused 
to let them vote. At the same precinct two or three Democrats 
whose names were written with ink on the tax-paid list were allowed 
to vote. That is all shown in the record. 

Mr. Bennet. How many votes come under that class — I mean 
whose names appeared on the tax list in red ink, who were not per- 
mitted to vote ? 

Mr. Carrico. If I mistake not, five at Comers Rock. I do not 
recall now, but my brief will show each and every voter that was so 
refused. 

The Chairman. Have you taken the testimony of these men who 
appeared ? 

Mr. Carrico. We have taken the testimony of some of these men 
who appeared and offered to vote, and then we have taken the 
testimony of the Republican judge of election over there, showing 
that they appeared and said they wanted to vote for the contestant 
and they were refused the privilege of voting there. 

Mr. Saunders. Would you point out to the committee that part 
of the record which shows that these people at Comers Rock offered 
to vote for contestant ? 

Mr. Carrico. Yes; I will do that. 

Mr. Saunders. You will find it referred to in contestant's second 
brief, pages 323 and 324 of the record. Show wherein those people 
say they would have voted for the contestant. 

Mr. Carrico. They were shown to be Republicans. 

Mr. Saunders. Well, I will admit that; but show that they offered 
to vote and were rejected. Please show that thej said they would 
have voted for Parsons if they had been allowed to vote. 



32 PAESONS VS. SAUNDERS. 

The Chairman. What were their names ? 

Mr. Saunders. S. K. Fielder, J. W. Hall, and Bob Catron. 

Mr. Carrico. I will refer you to page 633 of the record. P. K. 
Catron testifies, and his testimony will be found at that page of the 
record. Robert Catron was one of the parties referred to, and his 
father states as follows: 

Q. Was there any voters desiring to cast their ballots that day challenged and rejected 
at your precinct? 

A. Yes; there was some. 

Q. State who they were and for whom did they intend to vote? 

A. One was my son, Robert Catron. I don't know that any of the others that were 
objected to come in, and they intended to vote for Parsons for Congress. 

Q. Did W. E. Hall vote there that day? 

A. I don't think he did. 

Q. Why did he not vote? 

A. He was challenged. 

Mr. Saunders. Hall was challenged on a different ground. His 
name could not be found, and while they were looking for it he got 
away. But I refer to the people that you say were rejected because 
their names were in red ink. If it is not disturbing you, I would like 
to have you point that out. 

Mr. Carrico. I don't know that they said they would vote for 
contestant; they said they were Republicans, and my recollection is 
that the record shows that they went there for the purpose of voting 
and were challenged. 

The Chairman (reading from the printed record of testimony, 
p. 323): 

Q. What are the politics of the said Andy Sells, and whom was he supporting for 
Congress in the last election? 
A. He is a Republican, and was supporting Mr. Parsons. 

Mr. Saunders. It does not say that they offered to vote at all. 
Mr. Bennet. W. S. Cornett testifies (p. 634): 

Q. Did W. E. Hall vote there? If not, why not, and what was his politics, and for 
whom did he wish to vote? 

A. No; he was challenged; he was a Republican; he would have voted for Parsons 
for Congress; he told me so. 

Mr. Saunders. That is not embraced in this inquiry that I ad- 
dressed to Mr. Carrico. It has a dift'erent foundation. Hall was in 
this fix: Hall was entitled to vote all right, but they could not find 
his name. It was in the wrong place. The judges could not find 
his name, and while they were looking for him he got out of the place. 
When they called him, he had gone. 

Mr. Bennet (reading from testimony, p. 634): 

Q. Do you find W. E. Hall tax paid in name of W. E. Hall or Ellis Hall? 
A. W. E. Hall; he goes by name of Ellis Hall; was trying to find it in name of Ellis 
Hall; found it in name of W. E. Hall. 

The Chairman. Proceed, Mr. Carrico. 

Mr. Carrico. The record shows that these people were there for 
the purpose of voting, I think. This man Cornet was a Democratic 
challenger there. They may not have gone in to vote, but some of 
them did. This fellow, Catron, was there in red ink. He went in to 
vote, and his father says he was challenged and refused the privilege 
of voting. Probably all did not vote, but they were there for that 
purpose, and the evidence shows that they were strong Republicans. 



PARSONS VS. SAUNDERS. . 33 

I think, clearly under the law of the case, wherever their politics 
are shown to be strongly Democratic that that is a good index to go 
by that they voted for the contestee, and vice versa where they are 
shown to be strong Republicans. 

There is one other thing, and then I am through, and that is as to 
the taking of Floyd County out of the fifth district. 

I am only going to discuss two or three points on that, and I will 
be through. I would like for the committee to look at this map. 
[Producing map.] There is Floyd County. There was the fifth dis- 
trict as originally composed. It is testified to in the record that it is 
about 10 miles from this point [indicating] to the North Carolina line. 

Mr. Nelson. What is the length of the Sixth district ? 

Mr. Carrico. I could not tell you. Floyd County was taken out of 
the Fifth district and placed in the Sixth district. Floyd was in the 
Fifth district. I will show you the lines, the boundaries, of the old 
Fifth district. [Indicating on map.] The lines of the new Fifth 
district are these [indicating]. They just took that county out and 
added it to the Sixth district. 

The Chairman. Who prepared that map ? 

Mr. Carrico. That was prepared in Floyd County. I don't know 
who prepared it — one of the witnesses. 

The Chairman. Is there any controversy as to whether that is the 
correct map ? 

Mr. Carrico. I think not; I think Mr. Saunders will concede it. 

Mr. Saunders. That is substantially correct. You will find the 
same outlines in the Congressional Record; this is simply on a larger 
scale. 

Mr. Carrico. And there is evidence in the record that this is about 
10 miles across here [indicating]. That is not controverted. It is 
further shown in the record that that 10 miles is composed of a moun- 
tain spur and there are no means of communication, by road or other- 
wise, from Carroll County into Patrick County. 

The Chairman. Does not the record also show that there is a com- 
munication; are there not some witnesses who testified that there 
are roads through that portion ? 

Mr. Saunders. There is a turnpike up to Floyd court-house, and a 
turnpike leads to Stuart, the county seat of Patrick County, from 
Carroll. 

Mr. Carrico. Witnesses who live there testify that there are no 
roads and no means of communication. 

Mr. Saunders. You go by Mayberry and the Meadows dam. 

Mr. Carrico. When you go by the Meadows dam, you go on the 
Danville pike, which extends from Stuart around through Floyd 
County into Carroll County. The witnesses testify that there is no 
public road there connecting one end of the district with the other. 

Mr. Saunders. There was a witness who testified to that, but we 
say that, as a matter of fact, that is not correct. 

Mr. Carrico. So far as I know, it is correct. 

The Chairman. Well, that is not material. 

Mr. Carrico. Here is the law that I wanted to call attention to. 
This is section 55 of the constitution of Virginia : 

The general assembly shall, by law, apportion the State into districts, correspond- 
ing with the number of Representatives to which it may be entitled in the House 

38069—10 3 



34 PAESOisrs vs. saundeks. 

of Representatives of the Congress of the United States, which districts shall be 
composed of contiguous and compact territory containing, as nearly as practicable, 
an equal number of inhabitants. 

Mr. Bennet. That is the constitution of Virginia ? 

Mr. Carrico. The constitution of Virginia, section 55. The lan- 
guage of the federal statutes is identical with the constitution of 
the State, saying that the districts shall be composed of contiguous 
and compact territory and containing, as nearly as practicable, an 
equal number of inhabitants. 

Mr. Nelson. Is the wording identical ? 

Mr. Carrico. The wording is identical with the act of Congress 
passed in 1901, I think, making the apportionments. 

Mr. Tou Velle. Do I understand you correctly to say that the 
wording of your constitution is the same as the wording of the act of 
Congress ? 

Mr. Carrico. Yes; that portion of it — that is, ''which districts 
shall be composed of contiguous and compact territory, containing, 
as nearly as practicable, an equal number of inhabitants.'' 

The act of Congress passed in 1901 says the same thing. 

I do not think that the contestee in this case can consistently claim 
that the taking of Floyd County from the fifth district and adding it 
to the sixth district will make the fifth district more compact, because 
it clearly shows that it leaves it less compact. 

The federal census in 1900 showed a population in the fifth district, 
including Floyd County, in round numbers, of 175,000; and it 
showed in round numbers that the sixth district, exclusive of Floyd 
County, had a population of 187,000 — 12,000 more than the fifth 
district. Floyd County contains something like 15,000 inhabitants. 

Mr. Nelson. What was the unit of population for congressional 
districts under the apportionment of 1 908 ? 

Mr. Parsons. 185,000. 

Mr. Nelson. How much was the sixth district over the unit ? 

Mr. Carrico. In the census of 1900 the sixth district was 12,000 
larger than the fifth district, before Floyd County was taken out of it. 

Mr. Bennet. It was 2,000 over the unit ? . 

Mr. Carrico. Yes; it was 2,000 over the unit. Now, it certainly 
was not to equalize the population, because it is shown in the record 
here that in 1900 the sixth district had 187,000 and the fifth district 
175,000. It is shown further in the record that up to the time of 
the passage of this act taking Floyd County out of the fifth district 
and placing it in the sixth district that the sixth district had grown 
in population greater than the fifth. The fifth district is a rural 
district. It has only one large town in it, the city of Danville. 
Roanoke is right near the borders of the fifth district. Roanoke 
city is not located on the map here, and it has drawn very largely 
from the fifth district. That is shown in the record. So that cer- 
tainly the population in the sixth district up to the time of this 
taking of Floyd County out of the fifth and placing it in the sixth 
had increased more than the fifth, and therefore the disparity in 
the population was greater at the time they took it out than the 
census of 1900 shows. The census of 1900 showed that the sixth 
district was larger than the fifth, with Floyd County included in the 
fifth. It could not have been for that reason. It is conceded by 
the contestee here that this committee has the same rio-ht as a court 



PAKSONS VS. SAUNDERS. 35 

to pass on these things. Then if they have, the courts have passed 
on this and it will be arqiied by my associate counsel more at icno-th 
and cases cited where it is shown that the legislature has disreo-arded 
the constitutional mandate; they have neither tried to make the 
territor}^ more compact nor have they tried to equahze the popula- 
tion; they have disreoarded those provisions. They have lost sight 
of the constitution, and the courts will intervene and declare the acts 
null and void in such cases. 

Now, if it is conceded that this committee has the same right, we 
ask that this committee exercise that right; and that the committee 
say that the legislature of Virginia had lost sight of the constitu- 
tional provision when it took Floyd County out of the Fifth District 
and ])laced it in the Sixth District, and that they left the Fifth Dis- 
trict less compact. . They added to a stronger district and took away 
from a weaker district. Therefore, they lost sight of equalization 
in population, and I might add, gentlemen, that they lost sight of 
everything; but it seems a partisan way of getting votes. 

We have extracts taken from the Democratic press, which are 
fded with the record, which I would like to have the committee read. 

Mr. Nelson. What do you mean by the Democratic press? Do 
you mean local papers or the metropolitan Democratic papers ? 

Mr. Carrico. The metropolitan Democratic papers; the Roanoke 
Times, being the organ of southwest Virginia Democracy; the Rich- 
mond Times-Dispatch; the Richmond Journal; the Richmond News- 
Leader. 

Mr. Nelson. In substance, what do they say, without going into 
it in detail ? 

Mr. Carrico. In substance, they say it is a gerrymander for politi- 
cal purposes only; that it is not for the good of the State, and it says 
that the Democratic party may rest assured they will be called to 
account for it; that the spirit of the new constitution has been vio- 
lated; that it was intended for the purpose of excluding the negro 
vote, which it did ; and it was now left for the wliite men of the State 
to settle the political questions and that the Democratic party would 
be in a bad hole if they substitute legislation for apathy in their 
party in order to hold their Members in Congress. That is the sub- 
stance of it. 

Mr. Tou Velle. How did the district go, as it now is ? 

Mr. Carrico. Exclusive of Floyd County? 

Mr. Tou Velle. In the presidential election ? 

Mr. Carrico. President Taft carried it by 11 votes. That was 
exclusive of Floyd. 

Mr. Bennet. Including Floyd, how did it go ? 

Mr. Carrico. Including Floyd, I thinlv it went about 1,100 for 
Taft. 

Mr. Nelson. You say that the present district, the fifth district, 
went for Taft ? 

Mr. Carrico. Yes, sir; it went for Taft by 11 votes. 

Mr. Howell. Including Floyd ? 

Mr. Carrico. No, excluding Floyd County; and b} about 1,100 
including the vote of Floyd County. 

Mr. KoRBLY. Is it your contention that the legislature is bound 
to follow county lines in making a district ? 

Mr. Carrico. Oh, yes; I think so. 



36 PAESONS vs. SAUNDEES. 

Mr. KoEBLY. What is the basis or authority for the claim that they 
are bound to follow county lines ? 

Mr. Carrico. I can not just lay my hand on the statute, but the 
statute provides that they shall have regard to county lines in redis- 
tricting the State. I will look that up a little later and show it to you. 
They can not divide a county in redistricting. 

Mr. Nelson. Was the county of Floyd the only county, or was 
there some other county 

Mr. Caeeico. The county of Craig was taken from the ninth 
district and placed in the tenth district. This is the second time 
that the legislature of Virginia has redistricted under the 1900 
census. In 1902 the legislature passed an act redistricting the State; 
and at that time, besides making some other changes, it added the 
County of Halifax to the fifth district. Hahfax is due east of Pittsyl- 
vania County and would be at the eastern extremity of the district. 
That county is largely Democratic. That was added to the district, 
but that was in Mr. Glass's district and it didn't suit him, and the 
governor at that time. Governor Montague, vetoed that bill, as the 
legislature, he thought, had violated the constitution, as I have shown 
you, in that it did not make a more compact territory and did not 
equalize the population. 

Then in 1906 the State did redistrict, in which a county was taken 
from the second district, I believe, and added to the first. 

In all those bills, every district in the State was bounded and each 
county mentioned. And then in 1908 they redistricted again and 
took Floyd County out of the fifth and placed it in the sixth district, 
and Craig out of the ninth and placed it in the tenth district. 

Mr. Nelson. What effect did the shifting of Craig County have on 
the population of the respective districts ? 

Mr. Caeeico. The County of Craig was a Democratic county and 
the tenth district at one time had a Democratic Congressman here, 
Mr. Yost, and it was probably to strengthen the Democrats in that 
district; so Craig was taken off from the ninth, which was largely 
Republican and placed in the tenth. 

Mr. Nelson. Can you give me the units of population and the 
figures ? 

Mr. Saundees. I can give you the population of each district in 
the State. 

The Chaieman. When was it that the State was apportioned and 
the bill was vetoed by the governor ? 

Mr. Caeeico. That was in 1902. 

The Chairman. That was the first apportionment under the new 
constitution ? 

Mr. Caeeico. That was the first apportionment. That was vetoed, 
and then in 1906 there was another redistricting of the State, which 
was approved by the governor and which became a law. Then, in 
1908 there was a further readjusting, and before this election. And 
that was approved by the governor. There were three attempts, and 
two successful attempts, to redistrict the State under the same census; 
and, as I say, I think that that violates not only the federal statutes 
which provide for the State's redistricting and election of represent- 
atives, because it does not make the territory more contiguous or com- 
pact, but it violates the constitution as well — if not the letter, at least 
the spirit of the constitution — and the federal statutes providing for 



PAESONS VS. SAUNDERS. 37 

the redistricting. As a matter of fact, it has cut the fifth district in 
two, so far as communication is concerned. Tliere can be no direct 
conmiunication from one end of the district to the other, according to 
the evidence in the case. I take it that it is correct, because it is from 
men who hve in that part of the ihstrict. I am not famihar with the 
situation myself, except as to the Danville pike coming from Stuart 
into Carroll. I know you have to go into Floyd County in going that 
way. I know I have always gone either that way or around through 
North Carolina. And I am told by people who live there that there 
is no practical route through this mountain spur except through the 
sixth district as now composed, or around through North Carolina. 
So, if not in fact, it in spirit violates the constitution in that the ter- 
ritory is not contiguous. 

With that I submit these questions to the committee. I thank you. 

(At this point, 3.15 o'clock p. m., the committee took an informal 
recess for fifteen minutes.) 

Mr. Thurston (after the committee reassembled). I have the 
pleasure of introducing ex-Governor Montague, of Virginia, who will 
proceed with the further argument of the case in behalf of the 
contestant. 

ARGUMENT OF HON. A. J. MONTAGUE, IN BEHALF OF THE CON- 
TESTANT. 

Mr. Montague. May it please you, Mr. Chairman and gentlemen 
of the committee, I wish to address myself to the invalidity of the 
apportionment act of 1908. I shall not discuss any other questions 
in the case. I am not prepared to speak upon them, and I will have 
to forego any argument upon any of those questions which have 
been touched or may liereafter be touched by my associates. 

I wish first to sul^mit to the committee a proposition which I think 
strikes in limine the whole case under consideration, namely, that 
when tlie legislature has under a given census or enumeration made 
an ai)portionment it exhausts its j^ower to make another apportion- 
ment until there be a recurrence of the enumeration. 

I need not suggest to this committee that this question is wholly 
a federal or national c|uestion. It was largelv discussed in the Con- 
vention of 17S7, and the subject of ai)portionment of representation 
and the method of representation came very nearly splitting the 
hodj two or three times. Madison observes in his second volume, 
752, that whatever reason might have existed for the equality of 
suffrage wlien the Union was a federal one among the several States 
must cease when a national government shovdd be put into its 
place. By the language "equality of suffrage" he meant that the 
equality of state sufl'rage when the Union was a federal one under 
the articles of federation must cease when a national government 
should be ])ut into its place. 

It was said time and again by the eminent publicists of that day 
that this representation by numerical apportionment was given to 
the National Government and not to the States, in order that the 
former might preserve itself should exigencies arise. 

I think it will be conceded that neither under the Constitution of 
the United States nor the constitutions of the several States has 



38 PAKSONS vs. SAUNDEES. 

districting ever yet been held to be lawful without an express con- 
stitutional provision to that effect. (2 Bartlett Contested Election 
Cases, p. 55; also, 12 N. J. Law, 363.) 

Now, I am aware that there is a precedent, a political precedent as 
contrasted with a judicial precedent, and I do not mean to disparage 
it by making that distinction — in what is known as the Perkins case. 
I suspect the committee is more familiar with it than I am. 

The Chairman. Is it the New Hampshire case ? 

Mr. Montague. The case of Perkins v. Morrison. It is quoted in 
Hinds' Precedents, and also in 1st Bartlett, and perhaps some other 
places. In that case I think the question was raised that a second 
apportionment under a census was an illegal apportionment. I 
thmk, however, it should be said that it is a partisan report, and 
decided by party hnes. Before I leave that case, I beg the attention 
of the committee to this point. At that time the committee in 
considering the question did not have the benefit of the decisions of 
juridical bodies throughout the country dealing with almost identical 
provisions in state constitutions and apportionments thereunder of 
legislative and judicial districts. I say that because I am persuaded 
that if that question were a question of first impression before this 
committee you would decide, almost as a rule of stare decisis, that 
the whole logic and necessities of the case would require a departure 
from the rule therein laid down and an adherence to the law which 
I shall quote before I conclude. 

There the case went ofl^ on section 4 in Article I of the Constitution, 
bringing it under this classification: 

The times and places and manner of holding elections for Senators and Representa- 
tives shall be prescribed in each State by the legislature thereof. 

In other words, holding that apportionments or districting was a 
manner of ''holding elections." I submit to this committee that 
if it were a question of first impression, it would be your conclusion, 
the inevitable conclusion, that the "holding of elections" is not the 
making of apportionments, and that the "holding of elections" is 
not the districting of a State; that the "holding of elections" relates 
mainly to a ministerial and judicial function; that the "holding 
of elections" means the conduct of an election; and it would be 
absurd to speak of the conduct of an apportioning or the conduct of 
a districting. 

Therefore, the clause which was invoked there did not support 
the premise; and the premise being false, the conclusion necessarily 
falls with it. 

The "holding of elections" must relate to the subject of voting 
and the methods of voting. When this case of Perkins v. Morrison 
was heard, in my own State, if I am not mistaken, many of the elect- 
ors had one and two and even three votes in some instances. An 
elector could vote wherever he had land. He had a personal vote 
and he had a property vote as well. It was not the purpose of the 
Federal Government to interfere with that. It was not the purpose, 
as I understand it, to interfere with whether the vote should be 
viva voce or secret; whether it should be wholly by human operation 
or by voting machines or what not. The "holding of elections" 
ex vi termeni, has no relation to the subject of apportionment or 
districts. The election, if it please the committtee, is the instru- 



PAESONS VS. SAUNDERS. 39 

ment whereby the citizen (lelep:ates ]iis authority. The apportion- 
ment and district is a pohtical subdivision, a marking- oil' a «^iven 
grou]) of people according to an enumeration, who possess political 
powers — that is all that the apportionment can possibly mean — 
and grouping within a district according to numbers, as nearly 
equal as it may be. 

The statute then in force as to districting, which had gone in effect 
shortly before that, was not, if I read it correctly, what tlie present 
statute is — the act of February 16, 1901. Take the section 4 of the 
latter act. I will read it: 

That in case of an increase in the number of Representatives which may be given to 
any State under this apportionment, such additional Representative or Representa- 
tives shall be elected by the State at large and the other Representatives by the dis- 
tricts now prescribed by law, until the legislature of such State, in the manner herein 
prescribed, shall redistrict such State. 

I read this for this purpose, that here is a distinct affirmative state- 
ment that until the redistricting the districts shall remain as they 
are now, the idea being all along that apportionment and enumer- 
ation are complements of the same power; they are each essential to 
the exercise or the other; that it would be folly to have an enumera- 
tion, so far as representation is concerned, without an apportionment;'^ 
and likewise it would be impossible to have an apportionment without 
an enumeration; that the two constitute one and the same exercise 
of power, each being essential to the other. When 3^ou have an 
enumeration you must have an apportionment, and when you have 
an apportionment you must have a precedent existing enumeration. 
When you have an apportionment, you mean that that apportionment 
proprio vigore, occurs under an enumeration. They are both carry- 
ing powers. They both are the time and mode of doing one thing; and 
it is horn book law that when you do a thing at a time and according 
to a mode prescribed you consume the power in doing the thing; the 
power is thereb}^ exhausted, and the legislature is functus officio to 
exercise that power after getting through with it. 

Take the case here. I will read the statute: 

And if there be no increase in the number of Representatives from a State, the Rep- 
sentatives thereof shall be elected from the districts now prescribed by law, until such 
State be redistricted as herein prescribed by the legislature of said State. 

Take that language and extract from it either plural enumerations 
or plural apportionments. When the act says the districts shall 
remain as they are, the idea of a single enumeration alone is meant; 
and when you sa}^ that they shall remain as they are, until you have 
another act to transform it into something else, that transforming or 
reapportioning must necessarily be a single act, and its plural exercise 
is, in the nature of things, forbidden. 

The case of Perkins v. Morrison is the only case that I have been 
able to find that sustains the contention of plural apportionments. 
And here the exhaustion of power is only indirectly discussed. That, 
I believe, was in 1850 or somewhere about that time. 

The Chairman. There is a case in North Carolina 

Mr. Montague. Yes; I will come to that. That case, unless I am 
mistaken, does not involve a second apportionment under the same 
census; it was a repeal of an apportionment under a prior census by 
the act of making an apportionment under a second census, a distinc- 
tion that should be borne in mind; there the question was not the 



40 PAHSONS vs. SAUNDERS. 

exhaustion of power by reason of the former apportionment — and we 
must always take decisions as to the facts upon which they are 
based — but whether the successor of the Member whose decease or 
resignation occasioning the unexpired term should be elected in the 
district of the original representative or from the new district, for 
both apportionments were valid. 

Mr. Saunders. You are speaking of the case of Brown v. Poole ? 

Mr. Montague. Yes. 

Mr. Saunders. Was not that same case presented in the case of 
Morrison v. Perkins ? 

Mr. Montague. No; I think not. 

Mr. Saunders. Yes; that part of it was just the same. 

Mr. Montague. I think not. But if Judge Saunders is correct, 
my position is stronger, because my contention is, my understanding 
of the Morrison v. Perkins case is, that there the second apportion- 
ment was under the same census as the first apportionment. In the 
Poole case there is no plural apportionment under the same census. 

Mr. Saunders. In both of those cases the vacancy was not in the 
same district where the first vacancy took place. 

Mr. Montague. That may be true; but the point I am trying to 
convey is this, that you can act only once under one enumeration or 
census. 

The Chairman. And in the New Hampshire case, they acted 
twice. 

Mr. Montague. Yes; and in the North Carolina case they only 
acted once. In the case of Hunt v. Menard, the comment of Mr. 
Hinds, speaking of the Morrison-Perkins case, at page 179, is this: 

The doctrine of this case was reversed by case of Hunt v. Menard (2 Bart., 477), 
although the latter was complicated somewhat by another question of fraud. 

The comment here is that that case was reversed by Hunt v. 
Menard. I am frank to sa}^ that it is not my construction that it was 
wholly reversed. I think it reversed upon one point in Perkins v. 
Morrison. 

I beg to accentuate again this contention; that the case of Per- 
kins V. Morrison stands alone, and that it has not been affirmed by 
subsequent action of Congress, so far as I have been able to find. 

In the case cited in the brief of Denny v. The State (144 Ind., 503), 
decided in 1895, I will read the syllabus, which is the same as that 
contained in the body of the case — because I wish to expedite the 
argument. [Reading:] 

A valid apportionment law can be passed only once for each enumeration period, 
under our State constitution, Article IV, section 4, providing for the enumeration 
every six years, and section 5, requiring an apportionment at the session next following 
the enumeration. 

There is no affirmative expression there against reapportionment 
within six years. I have a case here, an Illinois case, which is pre- 
ciseh" on all fours with this case in its chief features and the real 
essential principles involved; it turns upon the statement I made a 
while ago, that when the mode and the time are prescribed and you 
have complied with that requirement, the legislative power is ex- 
hausted, and its further exercise is ultra vires until the time and the 
wav occur for it again to be done. 



PARSONS VS. SAUNDERS. 41 

I will read section 5 of tlie constitution of Indiana. [Reading:] 

The number of Senators and Representatives shall, at the session next following 
each period of making such enumeration, be fixed by law and apportioned among the 
several counties, according to the number of the male inhabitants above 21 years of 
age in each; provided that the first and second election of members of the general 
assembly shall be made before the adoption of this constitution. 

As the committee will see, there is no ex])ress language prohibiting 
a further apportionment. It gives the right to make one in six years, 
but does not prohil)it two in six years. And yet, the court holds that 
when the act is once exercised thereunder, it can not be repeated 
until the subsequent enumeration has been made, and then only 
one apportionment can be made thereunder. 

Mr. Nelson. In that case, did they attempt to reapportion in the 
six-year period ? 

Mr. Montague. Yes; they attempted to make two, and the second 
one was held invalid. 

The Chairman. That was under the state law of Indiana ? 

Mr. Montague. Yes; under the state constitution. 

Now, I come to the Illinois case. The article in question is in these 
words (Art. IV, sec. 6, constitution of Illinois) : 

Sec. 6. The general assembly shall apportion the State every ten years, beginning 
with the year 1871, by dividing the population of the State, as ascertained by the 
federal census, by the number 51; the quotient shall be the ratio of representation in 
the senate. The State shall be divided into 51 senatorial districts, etc. 

This language applies to senatorial apportionment, and the lan- 
guage is substantially that of the Constitution of the United States. 

Mr. Saunders. What case is that ? 

Mr. Montague. I beg your pardon; I thought I had given it. It 
is the case of People ex rel. William Moonev v. Hutchinson (172 111., 
486). 

Mr. Saunders. That has not been cited heretofore. 

Mr. Montague. It is found in 172 Illinois, and also in 40 L. R. A., 
page 770. This is a very well considered opinion. Here the question 
was amending an apportionment by adding one county. The court 
used this language: 

The question thus raised is whether the election for senators and representatives, 
to be held in November, 1898, is to be held in the districts as created by the law 
approved June 15, 1893, and in force July 1, 1893; or in the districts as fixed by said 
mandatory act approved January 11, 1898, and which, if valid, will go into effect 
July 1, 1898. 

You see this is quite an identical case with the one here under con- 
sideration. 

The court further says: 

The presumption is that it was for the purpose of a better adjustment of rights of 
representation that Dupage County was added, and that the mandatory act was passed 
with a view to making the legislative branch of the Government more nearly repre- 
sentative of the people in their sovereign capacity. 

Even if made, if you please, for a greater equality of population or 
for more compactness of territor}^ or for a greater contiguity of terri- 
tory, the court says we can not consider that; it is not a question of 
policy, it is a question of power. The court goes on to say: 

This, however, can not influence the determination of the case if there was a want 
of power to make the change, for it has always been held, as it was in People ex rel. 
Woodyatt v. Thompson (1.55 111., 451), that a court can not declare a statute uncon- 



42 PAESoisrs vs. saui^ders. 

stitutional and void on the ground of unjust differences not prohibited by the statute, 
and within the legislative discretion; and neither can a court sustain a law, where 
there is a want of power to enact, merely because it is wise in policy or just in its 
provisions. 

1 have read the provision. I have stated to the committee that 
this particular act considered by the court was in the form of an 
amendment to a former apportionment act, if that be, as suggested in 
Mr. Saunders's brief, one of the questions to be considered; yet, if you 
will look at the two Virginia acts, you will see one is as complete as 
the other. One makes an amendment, it is true, but it redistricts 
the whole State throughout. But I don't think that is of moment at 
all. It is not a question of how greatly the power is exercised; it is 
a question of whether it is exercised at all. 

The Chairman. What is that Illinois case ? 

Mr. Montague. The case of Mooney v. Hutchinson. That was the 
case of a mandamus to compel the holding of an election under one 
act, alleging the second act unconstitutional. 

The Chairman. Is that the only Illinois case you have ? 

Mr. Montague. Yes; it is the only one I have. I can not now 
recall any others. There are some stated in this opinion. Now, I 
wish to read from the opinion : 

The passage of an apportionment act is the exercise of a legislative power — 

_ I will not take up the time of the committee to cite all the authori- 
ties that are given — 

and if there were no other provisions relating to apportionment than the general 
legislative authority conferred by section 1, the legislature might apportion the State 
at its pleasure at any time. There is no express denial in the constitution of the right 
to exercise this power whenever the legislature may see fit, and it is therefore argued 
for the defendant that it may be exercised at any time, and that the legislature may 
make an apportionment whenever they choose. 

That is the precise contention here which I am trying to combat. 
The Chairman. That is the contention in the New Hampshire case, 
is it not ? 

Mr. Montague. Yes, sir; argumentatively, it is. 
I will read further from this opinion : 

This does not follow, however, and it is not essential in order that the constitution 
may operate as a prohibition, that it shall contain a specific provision that apportion- 
ments shall not be made otherwise than according to its provisions. The general 
principles governing the construction of constitutions are the same as those that apply 
to statutes. 

' He then cites authorities and continues: 

The use of enactive words would be conclusive of an intent to impose a limitation, 
and they are used in some instances in the Constitution ; but their absence is not con- 
clusive of the opposite. Where there are provisions inserted by the people as to the 
time when a power shall be exercised, there is at least a strong presumption that they 
designed it should be exercised at that time and in the designated mode only; and 
such provisions must be regarded as limitations upon the power. (Citing Cooley on 
Constitutional Limitations, 6th ed., 94.) 

If legislative power is given in general terms and is not regulated, it may be exer- 
cised in any manner chosen by the legislature; but where the Constitution fixes the 
time and mode of exercising a particular power it contains a necessary implication 
against anything contrary to it, and by stating a particular time for its exercise it 
also states a boundary to the legislative power. If a power is given and the mode of 
its exercise is prescribed, all other modes are excluded. 

He then cites Sedgwick on Statutory and Constitutional Law, 31: 

The legislature must keep within the legislative powers granted to it and observe 
the directions of the Constitution. 



PAES6NS vs. SAUNDERS. 43 



Now I read this : 



It is here admitted, as it necessarily must be, that the provisions for apportionment 
are all exclusive, except the particular one as to time. 

I think this must be conceded here, for it is inevitably the conclu- 
sion that must be reached: 

It is not denied that the basis for apportionment must be the population of the 
State as ascertained by the last federal census; that the population can only be di- 
vided by the number 51 ; and that the quotient must be the ratio of representation in 
the Senate. The only claim is that the provision as to time is not exclusive, and 
we can not see any substantial ground which established a different rule respecting 
the time than a mode of doing the act. 

Now, I desire to make one comment here, which, I can almost say, 
if the committee forgets everything else I beg them to remember it; 
that the whole contention here that there must be negative words, 
express words of exclusion, in the Constitution, is giving a forced 
construction. I contend when you give the time and the mode the 
exercise is limited, and the power can be repeated by affirmative 
words only. That is my contention. It is not the absence of 
exclusive or negative words restraining apportionments, but to 
carry the power for plural apportionments there must be affirmative 
words authorizing the renewal of the apportionment, and I think 
this decision justifies me in submitting that as the proper construc- 
tion of constitutions dealing with such apportionments as we are 
now considering. Absence of affirmative authorization necessarily 
forbids second or plural apportionments. [Reading further from the 
same opinion, above referred to:] 

In Wisconsin the constitution provided for an apportionment and organization oi 
assembly districts once in five years, but contained no express prohibition against 
their alteration between the periods fixed for apportionment, and in Slauson v. Racine 
(13 Wis., 398) it was said that "whatever limitation existed upon the power of the 
legislature in that respect was to be derived from the general scope and object of the 
provisions of the constitution concerning the apportionment of Senators and Repre- 
sentatives, but that it might well be said that this furnished such limitation;" and it 
was held that the provision implied that apportionments should not be made at any 
other time than that fixed by the constitution. The constitution of Indiana fixes the 
time once in six years when an enumeration of the voters of the State shall be taken, 
and the apportionment shall be made by law. 

Citing the case of Denny v. State (144 Ind., 503), the opinion says: 

This question was determined against the claim made, and it was held that if there 
were no particular provisions in regard to the subject of legislative apportionment, the 
legislature might, under a full and unrestricted vesting of legislative power, enact 
apportionment laws at their pleasure, but that the fixing by the constitution of a time 
and mode for the doing of such act was, by necessary implication, a forbidding of any 
other time or mode and a prohibition of the exercise of the power in any other way. 

The eminent counsel who have argued this case for the defendant with great learning 
and ability have failed to find any decisions contrary to the foregoing, or any authori- 
ties conflicting with those given, but insist that there is a difference between the 
constitution of Indiana and this State which makes the decision in Denny v. State 
(144 Ind.) inapplicable here. The distinction attempted to be shown we are com- 
pelled to regard as unsubstantial, and can not consider it a ground of difference that 
the enumeration which was made the basis of the apportionment in Indiana is taken 
once in six years, while the census, which is made a like basis in this State, is taken 
by the United States, .and once in ten years. 

I will read further from the same case : 

The apportionment, after the First Census, was not made to depend upon any subse- 
quent enumeration or event, and after the first enumeration the legislature not only 
apportioned the State every five years, but made changes during intervals. 



44 PARSONS vs. SAUNDEES. 

Wliat has been the legislative interpretation, long established 
and acquiesced in in this country, as to enumerations in the United 
States ? Are they ever made at any other time but once in ten years ? 
Now, I will read the conclusion of this case. [Reading further from 
the case of Mooney v. Hutchinson:] 

When the legislature of 1893 made the apportionment of that year, the conditions 
existed which authorized the exercise of the power and the legislative discretion was 
exercised, based upon the federal census of 1890 — a division of the population by fifty- 
one and the resulting quotient as the ratio of representation. That power and dis- 
cretion, when fully exercised, were exhausted and the power will not again arise until 
the conditions provided for in the Constitution shall again exist. The power and dis- 
cretion are to be exercised at stated intervals and in certain modes, and that legislature, 
upon consideration of the facts, exercised the power and the discretion. A subse- 
quent reapportionment based upon the same census, the same division, and the same 
quotient, which it is admitted must be used, would be nothing but reversing the judg- 
ment and discretion of that legislature, exercised upon the same facts at the time 
expressly authorized by the Constitution; and we can not think that it was in the con- 
templation of those who adopted the Constitution, that succeeding legislatures should 
set aside the conclusion of the first by changing and remodeling districts, where no 
new condition contemplated by the Constitution exists. 

As I said at the outset, if this were a case of first impression here, 
I don't think there could be any doubt as to the invalidity of the sec- 
ond apportionment, that it was an excess of power and was uncon- 
stitutional. And I submit, I repeat, that the case of fifty years ago, 
made in the heat of party stress, should not be taken in this day of 
good will throughout the length and breadth of the country, to over- 
rule the juridical judgments of the United States, I may add, the 
settled law of the land, wherever the question has been squarely passed 
upon by judges, considering the case before them as judges, and 
applying the law of the land to the case. 

The Chairman. The courts seem to be partisan still, however. 

Mr. Montague. But you will find that in this case they went 
against their own partisan convictions and decided on the other side. 

The Chairman. What was the Indiana case? 

Mr. Montague. There is a dissenting opinion in that case I have 
just referred to. The case in Indiana is the case of Denney v. The 
State. 

The Chairman. Have jou referred to the case of Parker v. State 
of Indiana ? 

Mr. Montague. I have not. It is referred to in those cases, but 
I do not think that takes up the question. That case deals with the 
inequality of population rather than the exhaustion of power. 

The Chairman. My reason for asking is that that is one of the 
cases cited by the contestee in this case, on which he relies. 

Mr. Montague. When you read that case, you will find it is not a 
precedent. I think there are some other cases 

Mr. Saunders. What case is that ? 

The Chairman. The case of Parker v. State of Indiana, that you 
refer to on page 13. 

Mr. Montague. In the case of Cunningham v. Secretary of State 
(81 Wis.) 

The Chairman. I might say that the case of Parker v. the State is 
one of the cases on which you folks have been relying. 

Mr. Montague. It sustains our view in its general argumentative 
character, but I don't think the question sufficiently similar to make 
it identical with the case I am now arguing. 



PARSONS VS. SAUNDERS. 45 

In this case, the State v. Cunningham 

The Chairman. Is that the Wisconsin case? 

Mr. Montague. Yes, sir. I suhmit that few cases have been 
argued with more ability than this Mr. Bragg, Mr. Estabrook, and 
Senator Spooner argued the case, and the argument is given at great 
length in the report of the case. There, however, the chief question 
involved was the inequality of population, discrepancy in the appor- 
tionment of population. There is a case in Ohio, the case of Evans 
V. Dudley (First Ohio, p. 437), where this question of a second ap- 
portionment was involved, and supports, as far as it goes, the con- 
struction which I am submitting as to exhaustion of power. 

Mr. Tou Velle. Is there not a later decision in Ohio than that? 

Mr. Montague. I am not prepared to say. This may be a little 
desultory, but my eye falls upon this particular clause. It relates 
more to the disparity of population than it does to the exhaustion 
of power; but the court says there that the right to pass upon the 
constitutionality of the apportionment act is a purely judicial one; 
that the passage of such an act is the exercise of a legislative and not 
a political power, and goes on to give a number of decisions sustaining 
that, and then uses this language : 

The only three cases in which it is even intimated that the court has not jurisdiction 
in such a case are the opinions of the justices, in 142 Mass., 601; 10 Gray, 613; and Wise 
V. Bigger, 79 Va., 232. 

The Chairman. Wliat are you reading from? 

Mr. Montague. I am reading from the case of State ex rel 
Attorney-General iJ. Cunningham (81 Wise, 480): 

There was no argument of the question in these cases, and in the last — 

That is the Wise v. Bigger case — 

the question was not in the case at all. 

Mr. Nelson. That is the Virginia case? 

Mr. Montague. Yes. And I stop to say that that question was 
passed over sub silencio in the Virginia case, and it can not be con- 
sidered in any sense a precedent. 

Mr. Nelson. Is that case you put in there the case of Cunningham 
V. State ? 

Mr. Montague. Yes. I say this may possibly be called a dictum, 
but the same case says, at page 517: 

The duty to pass such an act is a continuing one from the time it is constitutionally 
devolved upon the legislature until performed. 

The Chairman. This is the Virginia case ? 
Mr. Montague. No; the Cunningham case. 

From the time it is constitutionally devolved upon the legislature until performed, 
though when thus performed the power to pass any other such act is exhausted and 
will not again arise until after another enumeration. 

There were three or four opinions in this case, I think three, if I 
recall, and a unanimous conclusion — all very strong. 

On this question, if it please the committee, I submit that the 
report of a political body, no matter how honorable and dignified it 
may be, over fifty years ago, should not be considered as against 
opinions without conflict upon the same subject by judicial bodies, 
passing upon constitvitions similar in almost every respect to the 
Constitution of the United States. Again, that the United States 



46 PAKSOisrs vs. saunders. 

statute of apportionment at that time is not at all like the act of 
apportionment in operation now; and that the whole facts surround- 
mg this case, so far as the act of apportionment is concerned take it 
out of the ruling in Perkins v. Morrison, and brings it under the 
ruling of the cases which I have just named, which I confidently 
assert is the law of the land. 

There is a West Virginia case to which I want to call to the atten- 
tion of the committee. I had it a moment ago, but I do not find it at 
this moment. In that case, there was express language of limitation. 
Therefore, I have not cited it as being pertinent. 

The Chairman. Have you cited the West Virginia case ? 

Mr. Montague. I do not find that case at this moment. 

The Chairman. Is that a late case ? 

Mr. Montague. It is rather a late case. The only feature of the 
case that is worthy of consideration is that in arguendo it approves 
of the Illinois case and the Indiana case. But the constitutions are 
different, in that there is an express denial of the power to reapportion. 
It not only says you should do it, but that you should not do it at 
any other time. In otjier words, the West Virginia constitution 
there was commanding in terms what the decisions had decided in 
Illinois, Indiana, and Wisconsin was the law without such terms. 
(Harmison v. Commissioners (W. Va.), 42 L. R. A., 591.) 

Mr. Bennet. Are you familiar with the cases in the State of New 
York? 

Mr. Montague. I thank you for calling my attention to the 
matter. I will cite the New York case on this point before I leave 
it, the case of Baird v. Supervisors (138 N. Y., 106), where the 
opinion was delivered by the late Mr. Justice Peckham, then of the 
court of appeals of the State of New York, I believe. The court of 
appeals is your highest appellate court in New York? 

Mr. Bennet. Yes. 

Mr. Montague. There are so many of those courts that I some- 
times get them confused. 

I cite that case on the particular point, where the judge deals with 
very great force with the subject of necessary implication. There, 
for instance, the State in one constitution, of 1846, said the districts 
should be apportioned to the population equally divided, and in the 
constitution following it the subject of the equality of population 
was omitted altogether; but it says that the State should be appor- 
tioned, and Mr. Justice Peckham said the conclusion and the whole 
history of the State of New York unquestionably meant that the 
population of these legislative districts ought to be measurably in 
keeping with equality, district to district. Now, therefore, I will 
leave that particular phase of the case and address myself to one 
other. 

Mr. Bennet. Before you leave that, it may interest you to know 
that there is a very recent case in New York, decided within the last 
two or three years, and I would be interested in having your view of 
this state of facts. W^e redistricted the State. We had an enumera- 
tion, to adopt your method of thought for a moment, in 1905 and a 
redistricting in 1906. Some gentlemen contended that the redistrict- 
ing was not in accordance with the constitution of 1894, our latest 
constitution. They took the case to our court of appeals and the 



PARSONS VS. SAUNDERS. 47 

court of appeals sustained their contention and set the redistricting 
aside — set the apportionment aside. 

Mr. Montague. On what ground ? 

Mr. Bennet. On the ground of inequality, a violation of the con- 
stitutional provisions as to contiguous territory. 

Mr. Montague. Not on the ground of exhaustion of power by rea- 
son of a second apportionment under the same enumeration ? 

Mr. Bennet. No; but the point I wish to get your opinion on was 
this. They specifically directed a second apportionment, which was 
had and under which we are now acting. 

Mr. Montague. I am not familiar with that case. 

Mr. Nelson. They directed a second apportionment after the first 
had been declared unconstitutional? 

Mr. Bennet. Yes. 

Mr. Montague. The legislature rejected it ? 

Mr. Bennet. The court held that the first apportionment was not 
an apportionment at all. 

Mr. Montague. But they held that the constitutional mandate was 
continuing and another apportionment must be made under this com- 
mand ? 

Mr. Bennet. Yes. 

Mr. Montague. That I think entirely correct. It is a continuing 
power until exercised, and that particular exercise was an abortive 
attempt to exercise the power. 

Mr. Bennet. So they held. 

Mr. Montague. I imagined that would be it. 

I want to read from Cooley on Constitutional Limitations. [Read- 
ing:] 

If the directions are given respecting the times or modes of proceeding in which a 
power should be exercised, there is at least strong presumption that the people designed 
it should be exercised in that time and mode only. 

That is page 115. I read that before, I think. But here is what 
I wanted. This is in the 7th edition, prepared with great care by 
Professor Lane, of the University of Michigan, who has not under- 
taken to change the text, but to accompany it by cases and annota- 
tions. There is this footnote: 

Where the constitution provides that the legislature shall apportion the State into 
legislature districts, every ten years and that such appointments — 

He means apportionments — 

shall be based on the last preceding federal census, one exercise of this power of 
apportionment exhausts it, and the State can not be reapportioned until after the 
next federal census. 

He then cites the Illinois case to which I have referred. 

If it please the committee, I have not gotten along as fast as I had 
hoped, but I want to address myself for a moment to what I consider 
the invalidity of this apportionment act of 1908, on the ground that 
it does not preserve the equality of population or compactness or 
contiguity of territory. 

As I have suggested in my opening, it seems to me that this particu- 
lar power primarily must rest in the National Government, m order 
that it might meet any exigencies that might arise as a means of self- 

S reservation. It has only in a measure been taken over by the 
ational Government, though the National Government possesses the 



48 PAESONS VS. SAUNDEES. 

power now to deal with this case. That leads me here to make one 
suggestion, and that is as to the mode, the times, and places of hold- 
ing elections. In what was known as the "force bill," which was 
enacted by the National Government, the constitutional question of 
apportionments was not touched in the act. That did not go to the 
q^uestion of apportionment or enumeration, the act went to the ques- 
tion of holding elections, distinct subjects. 

Mr. Bennet. The manner of holding them ? 

Mr. Montague. Yes. The idea of any sane man saying that the 
holding of an election is the making of an apportionment or the mak- 
ing of a district is to me inconceivable. Of course, I say that respect- 
fully. 

Mr, Bennet. Before you start in on the other branch of the argu- 
ment, do you desire to say anything about the case of Carter v. Rice, 
in New York ? 

Mr. Montague. I don't want to weary the committee. That is 
cited in the Baird case and cited also in the Indiana case, if I recol- 
lect correctly. I am sure it is cited in the Illinois case. 

The Chairman. It is superseded by a later decision of the New 
York court, as I understand it? 

Mr. Bennet. Yes. 

Mr. Nelson. Do you remember the decision? 

Mr. Saunders. There is a later case, but it does not supersede it 
at all. 

Mr. Nelson. Carter v. Rice arose under the constitution of 1846 in 
our State, and it was a rather bitterly contested case and involved the 
redistricting of our State into senate districts. The decision in that 
case, as I recall it, was that under the constitution of 1846 there was 
a certain discretion in the legislature, and although the districts might 
not be entirely contiguous districts, entirely compact districts, and 
entirely equal as to population, that the legislature having exercised 
its discretion, carved out the districts, the court of appeals would not 
interfere, and they did not interfere, and it is in a subsequent case that 
they did interfere and under the constitution of 1894 upset the 
apportionment. 

Mr. Nelson. On the ground of inequality of population or lack of 
contiguity in territory, which? 

Mr. Bennet. The latest decision was on the ground of inequality 
of population and contiguity of territory and compactness of 
districts — all three. 

Mr. Saunders. I do not understand that these gentlemen claim 
that that later case reverses Carter v. Rice. 

Mr. Montague. I simply say that on the subject of inequality of 
apportionment and compactness of territory each case must stand 
upon its own merits. The courts' decisions all sustain or support the 
right to declare such acts invalid, and you can get from these deci- 
sions the general principles which should apply; but whether in any 
given instance the district lacks compactness or lacks contiguity, 
or lacks equality of population, must m the last analysis be deter- 
mined by the particular case. 

Mr. Bennet. But you do contend, as I understand it, that the 
jurisdiction is in the courts of a State to determine whether a 
legislative act is under a constitution requiring equality of population 
and contiguity and compactness of territory; that the legislature 



PAESONS VS. SAUNDERS. 49 

must comply with that and that the court has a risiht to say whether 
they have comphed with that. 

Mr. Montague. I (k>; yes. I say the courts will be careful but 
have lull power to tlo it. That is very well put, Mr. Bennet. 

As I stated, I don't know but three cases that hold that a court can 
not tlo that, and T have cited those. 

I think counsel concedes this in his brief. I think Mr. Saunders puts 
it rather strongly. It is a question sometimes of the chancellor's 
foot. It must be determined by the court's sense of intellectual and 
ethical a])preciation of the ritihtfulness and wron_i2,fulness of things. 

One of the three cases referred to is th(> case tried in my own State, 
of Wise V. Bigger. This was known as the readjuster court in Vir- 
ginia. The president of the court was -Judge Lewis, a very excellent 
man, a Repul)lican. The judge who delivered this opinion was Judge 
Fauntelroy, a very excellent gentleman. In that case there was a 
manthimus to compel the keeper of the rolls — we call our clerk of the 
house of delegates the keej)er of the lolLs — to strike from the I'olls, and 
the superintendent of public ])rinting to omit from the acts of assem- 
bly, the ])articular act of apportionment thei'e involved. (Page 269 
and beginning at page 282 of the o])inion.) 

Nearly the whole of the o])inion is taken u}) with a discussion of 
jurisdiction to entertain mandamus in such a case, the verity of the 
journals of the legislature, and that the kee])er of the rolls hati no 
authority to strike out the act, and that the public printer was functus 
oflicio after having printed it to recall it and you could not compel 
him by a mandamus to do so. The w^hole case was mainly taken up 
with this discussion, and concludes in this way: 

But the laying off and definin<); of the congressional districts is the exercise of the 
political and discretionary power of the legislature, for which they are amenable to the 
people whose representatives they are. 

That is one of the three cases which I have submitted as denying 
the jurisdiction of the courts to declare invalid apportionment acts. 
There is not a thing in this case other than the quotation just made 
which touches the case here, and this opinion is generally commented 
upon unfavorably wherever cited. 

I have tried to show, first, that a comt has am})le power to annul 
an act of the legislature on the ground of inequality of population, 
lack of compactness or lack of contiguity in the districts. I think it 
will be conceded that such an act can be declared null and void. 

Now, can this })e ^ Is there anything in this act that justifies its 
invalidity ? 

The constitution of Virginia follows the C^onstitution and the 
statute of the United States. So this committee, if my contention 
is sound, need not invoke the Constitution of the United States to 
intervene to overtlirow the statute of Virginia. It can overthrow the 
statute to save equality of the population and compactness and con- 
tiguity of territory under the constitution of Virginia. This is section 
55 of the Virginia constitution: 

The general assembly shall by law apportion the State into districts corresponding 
with the number of representatives to which it may be entitled in the House of Repre- 
sentatives of the Congress of the United States; which di^^tricts shall be composed of 
contiguous and compact territory containing, as nearly as practicable, an equal num- 
ber of inhabitants. 

:38069— 10 4 



50 PABSONS VS. SAUNDERS. 

I am frank to confess that the courts give quite a good deal of lati- 
tude to the legislature in the exercise of that mandate. 

What do you mean by compact territory ? What do you mean by 
as nearly the same population as may be ? Now, take this district, 
the Fifth district. It had 175,000 population, in round numbers. 
This act takes from it 15,000 population in the county of Floyd. 
The unit would be the quotient of 1,800,000, divided by 10, the 
number of Representatives allotted to the State of Virginia, which, 
in round numbers, would put the unit at 180,000 for each district. 

Mr. Nelson. May I interrupt for information ? 

Mr. Montague. Certainly. 

Mr. Nelson. What was the unit of population in the State which 
the governor vetoed — which yourself, as governor, vetoed ? 

Mr. Montague. I can not remember it all; I can not remember it, 
but it was substantially about this. 

Mr. Bennet. I don't think you understood the question. He 
asked what was the unit. 

Mr. Montague. One hundred and eighty thousand under the pres- 
ent census. 

Mr. Bennet. Both were based on the last census ? 

Mr. Montague. Yes. You see, we never made any apportionment. 
An apportionment was attempted in 1 902 and it failed. 

Mr. Saunders. In 1902. 

Mr. Montague. Then in 1906 an apportionment was made, and 
in 1908 another apportionment was made; two being made, you see, 
under the same census, and it is this second apportionment that I 
argue as ultra vires because the power of apportionment had been 
exhausted by the act of 1906. 

The Fifth district now contains 160,000, about 20,000 less than the 
unit of population. The Sixth district contains 187,000 population, 
7,000 more than the unit of population. Now, what was done? 
Floyd County was taken from the district that was below the unit 
and added to a district that was above the unit of population. In 
other words, the 187,000 population was increased to 202,000, and 
the 175,000 population of the Fifth district was decreased to 160,000. 
Now, how can you explain that you are complying with the consti- 
tution of Virginia, with the Constitution of the United States, that 
each district shall be as nearly equal as practicable in the matter of 
population, contiguity, and compactness of territory ? 

The Chairman. We are going to let Judge Saunders show that. 

Mr. Nelson. Was there any community of interests involved ? 

Mr. Montague. I think not. But even if there were, can a com- 
munity of interest override what are the express requirements of the 
Constitution of the United States and of the State in respect to 
equality of population, contiguity, and compactness of territory? 
Those are the three factors, as I understand it, to determine- — not 
community of interest. I can well appreciate that sometimes to get 
compactness of territory you may fall back in equality of population, 
and vice versa; I appreciate that; but there can be no argument, I 
submit, that in this case before us the inequality in population was 
exchanged for greater compactness of territory, or that less contiguity 
was exchanged for greater equality of population. The map of the 
district has been shown. I do not know an3"thing of the proof in this 
case. I understand that it was charged in the notice that the taking 



PARSONS VS. SAUNDEES. 51 

of Floyd County rendered this district practically not contiguous, 
because when you reach the contiguous point in Patrick and Carroll 
counties you can not pass from one into the other unless you depart 
from the district because of an intervening mountain barrier. 

The Chairman. Communication through Floyd County? 

]\Ir. Montague. You must go through Floyd County, or on the 
south, through North Carolina. I am told that there are witnesses 
wlio testified to that state of physical facts, and that those witnesses 
are not contradicted. If that be true, then the fact must be conceded 
that you can not get from Patrick into Carroll by the ordinar}' 
method of communication. That is a mountainous country. I 
presume that fact has appeared here. There is a range of mountains 
running across, and the only way of communication are the common 
public roads through what are known as the gaps, north or south as 
the case may be, and thei'e are no roads through Patrick directly 
into Carroll. I am told that the evidence sustains that. If so, I 
submit that that demonstrates the lack of that contiguity which the 
statute requires and which the Constitution of the United States and 
of Virginia require. It renders it also uncompact, because it does 
not make any difference if they do touch physically if at the point of 
contact the physical obstructions are of such character that the inter- 
communication is interrupted ; I submit that if that physical fact 
stands out then the contiguity is broken and the compactness is 
broken. 

May I read a word or two from the Wisconsin case and the New 
York case may be cited as sustaining it. 

Says the court in this case : 

And here it is fit to observe that perversion of the constitutional rules of apportion- 
ment designed to secure a fair and just representation, manifestly tend to and, if unre- 
strained, may in time work a destruction and overthrow of the system of popular repre- 
sentative governm.ent itself. It is to no pm'pose to say that if the power of representa- 
tion by a wrongful and illegal apportionment has l^een put in the hands of the minority, 
whereby they are able to perpetuate theii' ascendency and power, there is, as was con- 
tended in argument, an adequate and appropriate remedy for such wrongs at the ballot 
box. The case of Attorney-General v. Eau Claire (37 Wis., 400), adjudicated after 
elaborate argument and the fullest consideration, is directly in point. The rights ad- 
vocated and protected from the prejudicial effect of an unconstitutional act of the 
legislature, the assertion of which it was sought to restrain in that case, were not rights 
of property or proprietary rights in any proper sense; but were rights of sovereignty 
which the State, in its own political capacity, held and was bound to guard and pro- 
tect — rights not other or different in point of law from the rights of the people to have 
full effect given to the political power of each elector and a fair and constitutional ap- 
portionment of the representative legislative bodies. 

I understand that the equality of population is intended in order 
that a people may not be over represented or under represented. In 
other words, districts shall have about the same population, that each 
may have the same representative power in legislative councils; and 
that it is one of the aims of our Government that one group shall not 
be so large that thereby it would be unrepresented, or so few, that 
thereby it would be over represented; but that you should bring, in 
order to preserve the numerical power, which finds its voice in the 
House, into districts of about the same population. 

Mr. KoRBLY. It is not your contention that the district is tlie unit 
of representation? These gentlemen represent Virginia. Mr. Saun- 
ders represents all the people of Virginia, does he not ? 

Mr. Montague. That is an argument which is made with a deal of 
force, but I have suggested — although I may be mistaken — that I 



52 PARSONS vs. SAUNDERS. 

can not conceive how you can hold this a national question, and it is 
national under the powers of the Constitution, for the very purpose 
of national self-preservation and then subordinate it to the unre- 
strained poM^ers of the State ; for the people of the State rather than 
the political entity known as the State are represented in national, 
rather than in their state, power in the House of Representatives. 

Mr. Bennet. Does not the fact that the Constitution of the United 
States in one of its sections provides for the election of President, in 
case there is no election by the electors, b}'' the House of Representa- 
tives, in which case each State gives one vote, and that one vote being 
determined by the majority of Representatives from that State, 
rather compel an equality of representation in the State? 

Mr. Montague. Yes, but only as to this extraordinary method of 
election; and then, Mr. Bennet, that was the subject of the com- 
promise in the convention of 1787, to give the people representation 
in the House and the State representation in the Senate. That was 
the great question that came near breaking the convention up two or 
three times. 

The Chairman. What would you say as to the inequality of appor- 
tionment in my own State ? For instance, the third district has over 
284,000 population, and my own district has only 157,000, or a differ- 
ence of 126,000. 

Mr. Montague. What would be the unit ? 

The Chairman. The unit was about 180,000. 

Mr. Montague. In your State ? 

The Chairman. Yes, as I recall it. 

Mr. Montague. How many Representatives have you ? 

Mr. Nelson. Did it exhaust its power at the time of the first 
apportionment 

Mr. Montague. You mean that is the present condition? 

The Chairman. The present condition. 

Mr. Montague. I would answer then, Judge, because I can not 
embarrass the march of my argument to its legitimate conclusion, 
I would answer that unless there were some very special reasons why 
you could not have greater equality of population, that that dis- 
crepancy constitutes an unconstitutional apportionment. 

Mr. Saunders. In the State of New York there are districts which 
exhibit a greater difference in population than that; for instance, one 
district has over 400,000'and another only 154,000. 

Mr. Montague. Now, you bring me to questions that I may be 
treading on people's toes to discuss; but if you will permit me to 
express my own candid view, I will say the whole thing is wrong, 
and that Virginia is as interested in an equal apportionment in 
Kansas, and Kansas equally is interested in an equal apportionment 
in Virginia. This is the one point and power in which we touch hands 
in a national sense throughout the length and breadth of the Republic ; 
and I do not know of any better time that we may set a precedent 
of real force and character. President Harrison, you remember, 
delivered a message in which he said that gerrymandering, or the 
inequalities of representation, was one of the dangers of the Republic. 

Mr. Nelson. I would like you to give us what you think is our 
power to declare unconstitutional a state law. 

Mr. Montague. I think you have the same power that the court 
has. In fact, Mr. Saunders concedes that; and, indeed, I think you 



PARSONS VS. SAUNDERS. 53 

have more power. I do not say more power, but you are a political 
body supervisino; another political body, acting; in this matter as the 
agent of the National Government, and therefore you are not trench- 
ing upon the several departments of the Government ; you are simply 
confining the agent, the State, within its constitutional limitations. 

The Chairman. It is conceded we have the power. 

Mr. MoNATGUE. I submit, in conclusion, that the discrepancy of 
population here is not justified; that its reduction was in a case where 
there should have been an addition rather than a reduction; and 
that the compactness of the territory was lessened when there was no 
necessity for lessening it; and both as respects numbers and territory 
the inequality or disproportion are unconstitutionally exaggerated 
by this bill. There seems to be no possible reason to justify, in a 
constitutional sense, any such discrepancy. 

Mr. Howell. If this apportionment had been made in the first 
instance by the legislature of Virginia, would you deem it such an 
apportionment as ought to be attacked on account of its inequality 
or population and lack of compactness ? 

Mr. Montague. My answer to that is that when that question was 
presented to me under my official oath, I vetoed it on the ground of its 
unconstitutionality. 

Now, one other cjuestion. It is manifest in this particular case that 
if the present apportionment is invalid you go back to a better con- 
dition so far as compactness and population are concerned, than 
obtains under the apportionment act of 1908, should this act be 
declared invalid. 

Mr. Nelson. Have we, sitting as a court here, to take into con- 
sideration consequences, very much? 

Mr. Montague. The courts have done that. I don't know that 
you would have to do it; certainly not as to the question of exhaus- 
tion of power. That would not apply at all. I have read a decision 
on that. 

Here is the Ninth District, with 220,000 people. Mr. Saunders 
can correct me if I am wrong. Those are the present figures after 
the change has been made. This includes Craig County? 

Mr. Saunders. Yes. 

Mr. Montague. How much population has Craig County? 

Mr. Saunders. It is a small county — perhaps ten or eleven 
thousand 

A Member. About 6,000. 

Mr. Montague. The Ninth District, then, was about 218,000, 
but yet in this apportionment of 1908 they added Craig County 
to that district. 

Mr. Saltnders. Oh, no; they took it away. 

Mr. Montague. I mean they took it from the district, which only 
cuts it down 6,000 from 218,000. That is the only case where there 
is any tendency to better the apportionment — the subtraction of 
Craig County from the Ninth District. The Tenth District has 
190,492, inclusive of Craig. So you see there was no necessity, so 
far as population was concerned, to add Craig to the Tenth District. 

I will not pursue this further, save to say that in the first place 
this contiguity from the map is a matter of visual proof, supplemented, 
of course, by proof as to communication, so that contiguity may be 
easilv determined. 



54 PARSONS VS. SAUNDEES. 

Mr. Bennet. Would the legislature of 1902, under your constitu- 
tion, have power to pass that apportionment act over your veto ? 

Mr. Montague. Oh, yes; but there was not a move made to do it. 
The legislature seemed to recognize the constitutional prescriptions 
which were suggested. 

Mr. Bennet. I assume that there was enough of one party in either 
branch to have had from that party the necessary two-thirds, or 
whatever was necessary. 

Mr. Montague. Your assumption is not a violent one at all. 

Mr. Nelson. If you recollect, how did the conditions in the fifth 
and sixth districts then compare with what they are now ? 

Mr. Montague. The sixth district was above the unit then, and yet 
an addition is made by the last apportionment. 

Mr. Nelson. I mean did the fifth and sixth districts have the same 
lack of contiguity and compactness in population in the apportion- 
ment that you vetoed ? 

Mr. Montague. Perhaps conditions in some of the districts were 
more accentuated; others were not so much so. The fifth district 
we are now considering was not as unequal under the vetoed appor- 
tionment as under present apportionment. But I have not gone over 
that for some little time, and I do not pretend to be accurate in my 
recollection. 

The Chairman. Have the courts of your State ever passed upon 
the questions with reference to redistricting the State ? 

Mr. Montague. No, sir. 

The Chairman. It has not been before any district court of the 
State ? 

Mr. Montague. Not that I know of. You mean the legislative 
or senatorial apportionment ? 

The Chairman. Yes. 

Mr. Montague. I can not recall any. 

The Chairman. I mean in the districts of your State. 

Mr. Montague. You mean the United States district courts? 

The Chairman. No. 

Mr. Montague. You mean our state courts ? 

The Chairman. Yes; as to whether in the election of state senators 
or members of the legislature any such question has come up. 

Mr. Montague. I can recall none. No; I do not remember any; 
I am quite sure that there has not been any in the historj?^ of the State. 

The Chairman. If we are to believe what is said by some of the 
leading Democratic papers in Virginia, that a great outrage is perpe- 
trated by the legislature of your State in reapportioning your State 
as they have, why have not some of them gone into the courts and 
brought up the question of state apportionment under the constitu- 
tion, as to whether or not this legislation was constitutional — whether 
this act was constitutional ? 

Mr. Montague. This is an apportionment purely of the congres- 
sional districts. 

The Chairman. I understand; but could not this case have been 
determined in your state courts ? 

Mr. Montague. I think so. . ' 

The Chairman. Why has it not been ? 

Mr. Montague. I could not answer that. 

The Chairman. It would have been a very proper thing for either 
of these parties to have gone into the state courts ? 



PARSONS VS. SAUNDERS. 55 

Mr. Montague. I think so, on a mandamus or injunction; it 
would have brought the matter up, and then it could have been 
appealed to the Supreme Court of the United States if necessaiy, I 
thmk. But that is a pretty long procedure, and the question has 
been submitted now and the jurisdiction and power of this committee 
are conceded. It can do what the courts can do. I ask it to apply 
the law the courts would apply. 

(Thereupon, at 5 o'clock p. m., the committee adjourned until 
to-morrow, March 3, 1910, at 10 o'clock a. m.) 



Committee on Elections, No. 2, 

House of Representatives, 

Thwsday, March 3, 19101 

The committee met at 10.25 o'clock a. m., Hon. James M. Miller 
(chairman), presiding. 

The Chairman. Senator Thurston, have you anything more to 
say in favor of the contestant ? 

Mr. Thurston. No, Mr. Chairman, we have finished oui- opening. 

The Chairman. Then w^e will hear Judge Saunders. 

STATEMENT OF HON. EDWARD W. SAUNDERS, A REPRESENTA- 
TIVE IN CONGRESS FROM THE STATE OF VIRGINIA. 

Mr. Saunders. Mr. Chairman and gentlemen of the committee, I 
am glad to be able to come to a definite issue over this matter, and to 
find out what are the present contentions on the part of this contest- 
ant, upon which he bases his claim to a, seat in the Congress of the 
United States. I might cite a famous saying, and exclaim: "Oh, 
what a fall is here, my countrymen," having reference to the extent 
to which this case has shrunk since the first statements about it were 
given out to the newspapers, and since the contestant first put his 
claims into formal shape in his notice of contest. That notice 
abounded in charges of fraud, of irregularity, of conspiracy, of wrong- 
doing, of injustice. It concluded with a statement that the irregu- 
larities in this case were such that, on investigation by the committee, 
it would find am})ly sufiicient grounds upon which to seat the con- 
testant. Taking up these charges of fraud and conspiracy, it will 
be noted that they have vanished. There is not a shred of testimony 
to support them, and they are not even insisted upon by counsel. 

There is gone forever from this case the charge that, with respect 
to the candidacy of Matliew, there was a conspiracy on the part of 
the contestee, and of the election officials, and of the Democratic 
party in the State of Virginia, to induce him to become a candidate; 
gone for the simple reason that the evidence in this case shows that 
no such conspiracy ever existed. The Democratic party was at no 
time a party to any scheme by which this man was to become a 
candidate, nor did it seek to preserve his candidacy as a secret from 
all the voters, save the Democratic voters. The evidence on this 
question shows that it was the Democratic newspapers in this dis- 
trict that spread far and wide the fact that this man was a candi- 
date. So far from his candidacy being a secret, it was known all 
over the district, to everyone who kept track of the news items in 
the papers. The evidence in this case shows that the Lynchburg 



56 PARSONS VS. SAUNDEES. 

News, the editor of which is Mr. Glass, my colleague in this House, one 
of the most strenuous, and if you choose to call him so, most partisan 
Democrats in the State of Virginia, published two weeks before the 
election the fact that there would be three candidates in the Fifth 
District of Virginia, naming Mathews as one of the three. This 
paper has an extensive circulation in every county in the fifth and 
sixth districts. (See Record, p. 380.) 

The evidence further shows that in the county of Henry another 
supporter of mine who, I suppose, attacked Mr. Parsons more vig- 
orously than any other editor in the district, or in Virginia, in the 
issue of his paper that came out the week before the election, called 
attention to the fact that Mathew would be on the ticket, and cau- 
tioned the voters with respect to marking their ballots. This edi- 
torial is an exhibit. (See Record, p. 265.) 

It is further shown that, so far as Mathew's candidacy was con- 
cerned, instead of the same being a secret it was spread abroad in the 
district for weeks before he sent his notice to the secretary of the 
Commonwealth. He sent his postal cards broadcast. One of them 
was received in the county of the contestant by the clerk of the 
court there, Mr. Bryant, one of the leading men of the Republican 
machine in that county. (Record, p. 325.) Another was received 
in the eastern end of the district by the Democratic mayor of Chatham. 
(Record, p. 415.) Further, the fact that he was a candidate was 
posted on the door of the court-house in the county of Henry. (Rec- 
ord, p. 266.) A friend and political supporter of mine, on the elec- 
toral board of Franklin County, wrote to the secretary of the Com- 
monwealth that Mathew had announced throughout the district 
the fact that he was a candidate for Congress. So much for the 
charge that there was a conspiracy to preserve the secret of Mathew's 
candidacy. It was spread broadcast from one end of the district 
to the other. Hence I say that this charge of conspiracy in respect 
to this man's candidacy has vanished into thin air. 

The Chairman. Are any of the clippings from any of these papers 
in the record ? 

Mr. Saunders. The proof is in the record, and I have cited the 
committee to the appropriate pages of the record where the same may 
be found. 

I will say further, gone forever out of this case is the charge that 
we were interested in keeping this man Mathew upon the ballot, for 
the evidence shows that the only effort that was made to keep Mathew 
from the ballot was made on the part of my own friends in my own 
county, who were the first and only persons to inform the secretary 
of the Commonwealth that he was of a disordered mind, and to 
suggest that he ought not to be on the ballot. 

There was taken in this case a significant piece of testimony, made 
more significant by reason of the fact that the man who gave it 
little knew how prejudicial his statement would be to the cause of 
his friend, Mr. Parsons. The testimony of a man named Roller was 
taken in the county of Rockingham, in the State of Virginia. Con- 
testant endeavored to show by him the fact that Mathew was a 
candidate in secret, and that the Democratic organization had kept 
the knowledge of the same from the people of the Fifth District of 
Virginia. The}^ asked him in the course of his testimony, this ques- 
tion: "Who would know about the fact that Mathew was a candidate ?" 



PARSONS VS. SAUNDERS. 57 

In his answer he went on to state that tlie nieiulx'i's of the electoral 
boards of the counties would be the only people who would know 
that fact, and then he added: "As a matter of fact, there would be 
only one electoral board in the Fifth District of Virginia who would 
know whether the man was a lunatic or not, and that board was the 
board of the county of Mathew's residence, the board of the county 
of the contestee, that is, the county of Franklin. These people would 
know that he was a lunatic as soon as his name was certified down 
to them by the secretary of the Commonwealth as one of the names 
to go on the oflicial })allot of the Fifth District." Then the witness 
added, little knowing the actual situation, that if that board had been 
disposed to be fair, it would have called the attention of the secretary 
of the Commonwealth to the fact that this man was a lunatic. At 
this time the witness was unaware that that was precisely what had 
been done by the secretary of the board in the comity of Franklin. 

Mr. KoRBLY. That he was insane ? 

Mr. Saunders. Yes; that he was a lunatic, because they were 
aware of the fact. Roller suggested a course that the board, in his 
opinion, should have pursued all unwitting that this was exactly 
what had been done. I am interested in this action of the local 
board, not as a matter of law, but simply as a matter of good faith, 
because I would not have this committee entertain the idea that I 
would be a part}" to a disgraceful scheme to induce a lunatic's 
candidacy merely to confuse the ballot in my district, a scheme that* 
would be unworkable under the present laws of Virginia, as I will 
show to this committee. The scheme would have been as futile as 
it would have been disgraceful on the part of the conspirators. The 
very moment the notice came down to the secretary of the electoral 
board of Franklin County that Mathews's name would be one of the 
three names on the ballot, the secretary of that board, who, as I have 
said before, was my personal friend and political supporter, sat down 
and wrote to the secretary of the Commonwealth to the effect that Math- 
ews was a lunatic, a man of good education, but of disordered mind. 
(Record, p. 585.) In this letter Martin suggested to the secretary that 
Mathews's name ought not to appear on the official ballot. The sec- 
retary of the Cominonwealth, mindful of his duty in the premises, 
replied that he had no authority under an}" proceedings he could 
institute to erase this name, and referred his correspondent to the 
highest law officer of the State of Virginia, the attorney-general. A 
correspondence then followed between Mr. Martin and the attorney- 
general. The letters that passed between the two are fded as exhib- 
its. Gone forever, therefore, from this case is the suggestion that 
the Democratic party of the Fifth Virginia district set on foot a dis- 
graceful scheme to further a lunatic's candidacy or to aid or abet it 
in any way, for the simple reason that it amply appears that the only 
people who were ever concerned in any movement to hinder Mathews's 
name from appearing on the ballot were Democratic officials in con- 
testee' s district. 

Gone also is the charge made in the notice of contestant, that there 
was a conspiracy on the part of the Democratic organization to 
deprive him and his party of the right to minority representation 
in the election judges at the several precincts in the Fifth District 
of Virginia, gone for the reason that the alleged conspiracy was a 
figment of contestant's imagination, and gone for the further reason 



58 PABSONS VS. SAUNDERS. 

that the contestant made no effort to follow up that allegation b}^ 
any sort of evidence in support of the same. So far from the charge 
being true that contestant did not have minority representation, it 
is shown that at more than one precinct in the Fifth District he had 
a majority of the judges. At one precinct he had all of the judges and 
all of the clerks. At another he had all of the judges and one of the 
clerks. At still another he had two of the judges. (See Analysis, 
pp. 80, 83, 89.) There was not a precinct in the Fifth District of 
Virginia at which a minority judge had not been appointed in con- 
formity with the law of that State. There are only one or two places 
at which any question is raised, and I will call the attention of the 
committee in this connection to these places. At Design, a precinct 
in the county of Pittsylvania, the complaint is made that the judges 
of election at that place would not appoint a Republican as the third 
judge. I wish to call the attention of the committee to the facts, 
as appears from the record, that a Republican had been appointed 
for that precinct, a man named Wright, and the evidence shows that 
an official ballot was abstracted while the package of ballots was in 
his possession. He appeared at the polls on the morning of the elec- 
tion and declined to act. Another man was then recommended, but 
he was believed by one of the judges to be in possession of the miss- 
ing ballot, in fact he claims to have seen him with it. Hence the 
judges would not appoint this man. Under these circumstances the 
judges appointed a Democrat. (See Analysis, p. 26.) I assert that 
the Republican judge who was appointed at that place either 
abstracted the ballot or else permitted the abstraction, because 
no effort was made to refute the evidence which convicts him 
of the charge. I defy these gentlemen, in this connection, to 
refer me to any evidence in this record refuting that in de- 
fense of Mr. Wright. In this connection, I wish to say to the 
committee that when I assert a proposition, , as a fact, I hold 
myself ready, in response to inquiry from any member of this 
committee, or the counsel representing the contestant, to support 
that assertion by immediate reference to the record in this case. 
The evidence relating to Wright is simply this: He was appointed in 
the first instance by the electoral board. The law of Virginia requires 
that the official ballots shall be put up in sealed packages and sent to 
the judges at the precincts. The judges who receive the packages 
receipt for them, and by the law this receipt must show that the 
packages are in good condition when received. (See code Va., Sec. 
122e.) The evidence further shows that this man Wright received 
an official package of 150 ballots, in good condition. (See evidence of 
Ramsay, a member of the electoral board. Record, p. 417.) Wright 
was not compellable to receive the package unless it was in good 
condition, because the law requires him to state the condition when 
received. The uncontradicted evidence shows that on the morning 
of the election when Wright turned up with the ballots, the package 
had been tampered with and the seal defaced. The judges proceeded 
to count the ballots in this package, which, according to the notation, 
should have been 150. They found but 149 ballots, and the election 
was then delayed while they made a record of that fact and sought to 
get into communication with the law officer of Pittsylvania County 
to ascertain what to do under the circumstances. ^ (See Record, 
Robertson, p. 377.) 



PAKSONS VS. SAUNDERS. 59 

Mr. Cakkico. Did they not a})t)oint a judge there in the j>lace of 
Wright, who had not paid his poll tax ? 

Mr. Saunders. Yes; it is asserted that he had not paid his poll tax, 
and I want to ask 3^ou in that connection what difference did that fact 
make, even if the charge is true ? 

Mr. Carrico. Does not our law provide that all the judges of elec- 
tion must be duly qualified ? 

Mr. Saunders. Show me the section which requires a judge to have 
paid his taxes. 

Mr. Carrico. It does not say so in express terms. 

Mr. Saunders. Show me the section that makes this requirement 
in indirect terms or in any sort of terms. Here is the section of the 
Code, section 118, that relates to the qualifications of judges. (See 
p. 5 of the Analysis.) I am glad this matter has been brought up in 
this connection, because I want to ask another question of these 
gentlemen, and then ask the committee whether they wish to go into 
certain questions raised in this case. It appears that at one or two 
precincts in Pittsylvania County the judges who acted were technically 
disqualified. I do not say that they were appointed by the electoral 
board, because the record is silent on that point, but it would not 
make any difference if they had been. They acted and they were 
technically disqualified. At one place a man was a constable; at 
another a justice of the peace. Technically, I admit those persons 
were disqualified from acting as judges by the law of Virginia, but 
there is no suggestion that at any one of these precincts anyone 
suffered, or that there was any wrongdoing, or that anything occurred 
to the prejudice of the contestant. I want to know whether this com- 
mittee wants to hear any discussion from me, or to have any authori- 
ties cited in connection with the mere suggestion of contestant that 
a judge was disqualified. If it is necessary, I am ready to take up 
that line, but I do not want to take up the time of this committee 
on propositions which I deem to be absolutely irrelevant. 

It is unquestionably the law with respect to the ({ualifications of 
jvidges that if a man acts, even if he has never been sworn, but 
there is no charge in the notice of contest that there was any wrong- 
doing at the precinct at which he acted, and it appears that the votes 
were honestly cast and honestly counted, then the disqualification 
of the judge is not sufficient ground for the rejection of the vote at 
that precinct. As I have said, I would like to know if the committee 
would like to hear from me along that line, because if the}^ do not it 
will give me that much more time in which to take u]) the discussion 
of other matters. Do these gentlemen insist that this disqualifica- 
tion of a few judges was prejudicial to contestant's interests. I 
would like to be cited by them, in this connection, to any law upon 
which thej^ will rely to show that those precincts ought to be thrown 
out or rejected as a whole at which these disqualified judges acted. 
If they contend for such a proposition, then I am ready to meet it. 
If they will frankly abandon any claim of advantage from that 
feature of the case, then that action will save me and save the com- 
mittee a needed measure of valuable time. 

To come back to the gentleman who was appointed at the precinct 
of Design by the judges of election. They claim that this man was 
not a qualified voter by reason of the fact that he was not on the tax 
list. I assert that it makes no difference if such was the case. He 



60 PARSONS vs. SAUNDEES. 

was certainly a defacto judge and his acts valid. In the case of 
Sherrill and O'Brien, cited infra, the court of appeals of New York 
held that a legislature elected under an act which they pronounced 
to be absolutely void was a de facto body and its enactments legal 
and binding. 

There is a conflict as to whether this judge had paid his taxes. On 
page 274 of record, bottom of page, the witness there testifying, posi- 
tively avers that T. M. Smith, the appointee of the other judges, had 
paid his taxes. 

The Chairman. Suppose he was not a qualified voter, and he was 
selected as judge of election, and then would have to pass on his own 
qualification to vote, when he was challenged, because he had not 
paid his taxes ? 

Mr. Saunders. If he was entitled to vote, no harm would ensue, 
if he allowed others in the same situation as himself to vote. 

The Chairman. They have a right to challenge whom they please. 
Do you think a man who is not a qualified voter at an election has a 
right to pass upon his own qualifications to vote ? 

Mr. Saunders. That question does not arise. 

The Chairman. It might arise; I do not know whether it did arise 
or not. Did this man vote ? 

Mr. Saunders. I think he did; yes. 

The Chairman. Was anv question raised as to the legality of his 
vote ? 

Mr. Saunders. Not that I know of, and I want to say, in this con- 
nection, that so far as his passing on his own qualifications such 
action would be an impropriety. In such a situation he ought to stand 
aside just as a member of the Supreme Court when a case comes up 
in which he had an interest as counsel, simply declines to act so far as 
that particular proposition is concerned. There is no evidence what- 
ever that Smith acted on any matter personal to himself. 

The Chairman. I may say I do not know how the committee feel 
about this proposition; there has nothing been said to the committee 
so far in the argument of counsel in reference to this particular case. 
I do not know what they are going to rely on. So far as I am per- 
sonally concerned, I have no disposition to go into it at all. 

Mr. Saunders. I am trying to get from these gentlemen now 

Mr. Nelson. There was no change in the result ? 

Mr. Saunders. None whatever. At no one of these precincts is 
there any challenge of the result; in fact, there is no challenge as to 
any precinct in the district. 

The Chairman. Is there a challenge of the result in the precinct 
where this man was selected as a judge ? 

Mr. Saunders. Not at all. I do not, however, want to be mis- 
understood. There are some votes challenged there, on account of 
individual incompetency and disability, but no challenge of the 
return as a whole by reason of this man's acting. Contestant and 
his counsel are present. If I am mistaken in this statement I am 
subject to interruption, and I ask to be interrupted. 

The Chairman. There might be a question raised in this precinct 
as to the number of votes challenged because the voters had not paid 
the poll tax, and if that judge should have to pass on that it would 
be an impropriety for him to pass on the disqualification of those 
who were disqualified by reason of the fact that they had not paid. 



PABSONS VS. SAUNDERS. 61 

Mr. Saunders. Tliere were but few, if any, challenges that I am 
aware of at this precinct, which raised any questions that the judges 
as a whole had to pass on, and in which it is shown this man partici- 
pated. I believe there was one challenge at this precinct wdiich 
raised a cjuestion of residence. In fact, there were but few challenges 
of votes in the whole district which were submitted at the time the 
voter cast his vote. The record shows some challenges and the 
action of the judges thereon. 

The Chairman. Because the,y had not paid their i)oll tax? 

Mr. Saunders. Yes. 

The Chairman. Would not that go to the very root of the matter, 
if a judge were selected as judge who had not paid his poll tax and 
was discpialified as a voter under the laws of his State ? He is there 
to pass on the (jualiHcations of voters; that is part of his duty as 
judge of the election. He passes on the c[ualifications of a man who 
is challenged, and then the next man comes up, and then he ofl'ers to 
vote himself, and the cjuestion arises whether he is entitled. He 
either passes on it, or else his colleagues pass on it, and he says, "I 
will step aside." 

Mr. Saunders. There is no evidence in the record of any such state 
of facts as that supposed. 

Mr. Thurston. We have challenged the particular vote of this 
particular judge by showing that he was not a legally qualified voter 
and that he did vote at that polling place. 

Mr. Saunders. Certainly; but he was not challenged at the time. 
I have stated that already. I will answer the chairman's question. 
If the voters now challenged were illegal voters, what earthly differ- 
ence would it make if this man voted to admit them ? You have 
the right now, if they were illegal voters, to exclude them. As a 
matter of propriety I grant you that this man should not have passed 
on his owai qualifications. But ' is qualifications were passed on 
by the other judges when they eiected him to sit with them. He 
had no occasion to pass on them. If any illegal votes were admitted 
at this precinct, and they votetl for the contestee, you are not hin- 
dered in any wise from excluding them uy.on proof of the facts. 

The Chairman. On that pro))osition I would like to have you con- 
fine yourself very largely to the argument on the (juestion as to 
whether or not they were legal voters. 

Mr. Saunders. That is the reason I was asking counsel for con- 
testant to point out to me the provision of our law which incapaci- 
tated this man from serving as a judge of election, because he had 
not paid his taxes. I want them to show me why it was that he was 
disqualified imder the laws of Virginia. I have answered the ques- 
tion of propriety, with respect to his individual case, as contained in 
the question of the chairman of the committee, but with respect to 
his alleged disqualification to act in the capacity of judge I would 
like to be cited to the law disqualifying him. Certainly in all re- 
spects he was a de facto judge. 

Mr. Parsons. Is he not an officer ? 

Mr. Saunders. No; in my view^ he is not an officer in the tech- 
nical sense contemplated by the laws of the State. 

Mr. Parsons. Doesn't he take an oath ? 

Mr. Saunders. Yes. So does an attorney at law. 



62 PARSONS VS. SAUNDEES. 

Mr. Parsons. If he is not an officer, who are the officers conducting 
the election ? 

Mr. Saunders. He is not an officer in the ordinary sense contem- 
plated by the laws; an attorney at law takes an oath, but he is not 
an officer. 

Mr. Parsons. He is sworn. 

Mr. Saunders. Very well, suppose he is an officer, then. Is an 
officer required to have his taxes paid in order to conduct an election ? 

Mr. Parsons. To conduct an election ? 

Mr. Saunders. Yes. Show me the law on which you rely. Here 
are the qualifications provided by the Virginia statute. 

Mr. Parsons. Section 118. 

Mr. Saunders. Yes. We have been theorizing, but I now wish 
to read the section itself to the committee [reading] : 

No person shall act as a judge or clerk of any election who is a candidate for, or the 
deputy or ernployee of any person who is a candidate for, any office to be filled at such 
election, or is the deputy of any person holding any office or post of profit or emolu- 
ment under the United States Government, or who is in the employment of such 
Government, or holding any elective office of profit or trust in the State, or in any 
county, city, or town thereof. 

Mr. Saunders. Will these gentlemen seriously offer that section as 
showing that a man must have paid his taxes in order to be a judge 
of election in the State of Virginia ? That section refers to the quali- 
fication of a man with respect to the deposit of his own ballot. I am 
discussing the qualification of a judge of election under the Virginia 
law. I do not suppose the committee would entertain that section 
for a moment as authority in this connection. 

Mr. Parsons. The question I asked you is this: Do you contend 
that the law requires less of a man to be an officer to hold an election 
than to vote ? 

Mr. Saunders. Come down to the law, and let us omit our respec- 
tive theories. I do contend that it does not require as much. I 
simply contend that the qualffications of a judge of election are fixed 
by the Virginia statutes. 

Mr. Carrico. If he is an officer, read section 32 of the constitution 
and see if it does not disqualify him. 

Mr. Thurston. I am not here at this j^resent time to say that this 
cuts any particular figure, but we do insist that under section 32 of 
the Constitution a person is not qualified for office, any office in the 
State of Virginia, except notary public, who is not a qualified voter. 
Section 32 reads: 

Every person qualified to vote shall be eligible to any office of the State, or in any 
county. 

And the converse is true, by any recogniTied rule of construction, 
that a person who is not thus qualified is not eligible to office. 

Mr. Saunders. Well, you are getting on a dift'erent proposition 
from the one raised by these gentlemen. You raise the question, who 
is an officer under the law of the State of Virginia. I am perfectly 
willing to take that up, if the committee considers it necessary to do 
so, and to undertake to show you that a judge of election is not, in 
the contemplation of the Virginia law, technically an officer. 

Mr. Bennet. Do you contend that the disqualifications mentioned 
in section 18 are exclusive disquahfications, or additional disquali- 
fications? 



PARSONS VS. SAUNDERS. 63 

Mr. Saunders. They are .the only ones, (Usquahfications, I take 
it. We never have considered it otherwise, so far as I am aware. 

Mr. Thurston. From our })oint of view they are undoubtedly 
additional disqualifications. 

Mr. Bennet. That is your contention, tliat a man who is disquali- 
fied by the provisions of section 32 of tlie state constitution would be 
eligible for a judge of elections ''i 

Mr. Saunders. Certainly. 

Mr. Bennet. Although he woiUd not l)e eligible for anv oHice in the 
State ? 

Mr. Saunders, "^'es. 

Mr. Bennet. And that tlie only discjualihcations are tliose con- 
tained in section IIS ? 

Mr. Saunders. Certainly. 

Mr. Nelson. Would you say that a man under 21 was quahfied to 
act as judge of elections ? 

Mr. Saunders. Yes; if he was intellectually capable, and not a 
mere boy. 

Mr. Nelson. A woman? 

]VIr. Saunders. It frequently happens that clerks of elections in the 
State of Virginia are under 21. That very question, in respect to a 
judge being under 21, has been presented to me. Yes, I think he 
could act. I do not think a woman could. 

Mr. KoRBLY. If an election ofhcer who is regularly appointed does 
not show up on the morning of election, an election oflicer is selected 
from those who are present ? 

Mr. Saunders. That is true. 

Mr. KoRBLY. If a minor is there, he may be put in ? 

Mr. Saunders. That is the contention; I maintain that 
jiroposition. 

Mr. Bennet. Would you maintain that an ex-convict or a lunatic, 
both of them disqualified from holding office in the State, would be 
eligible as judges of election? 

Mr. Saunders. I would say in response to that query that, of 
course, you can take almost any inquiry and follow it up to the 
point when the person who has been answering in the affirmative 
must answer in the negative. There comes a point when distinction 
becomes very difficult. It is very easy to distinguish midday from 
midnight, but not the precise time when twilight becomes darkness. 
Y"ou can keep on putting questions until you get to a point where 
things begin to shade into each other. Of course, I do not contend 
that a convict ought to be appointed a judge of election, nor do I 
contentl that a woman can hold office in Virginia. 

The Chairman. Except for notary public ? 

Mr. Saunders. Yes; that is fixed by our constitution. These 
things are entirely foreign to the case. I am not contending for any 
such propositions as the above, but I ck> contend for this proposition, 
that tlie section of our code which relates to judges of election pro- 
vides who may and who may not be judges. Section 118 is the 
section which relates to the qualifications of judges and clerks of 
election. It is the one to which one would naturally look, when the 
electoral board came to appoint the judges and clerks. If there is 
any other section that provides for and fixes the qualification of 



64 PAESONS VS. SAUNDERS. 

judges and clerks, I do not find it in the code of Virginia. That is 
all I have to say in this connection. 

To come back to this particular T. M. Smith, and the action of the 
judges in declining to appoint a man named Ferrall, who was offered 
as a Republican judge on the morning of the election. Design was 
the only precinct in Pittsylvania County where complaint was made 
that a Republican judge was not appointed. This man Wright who 
had been appointed by the electoral board was a Republican. He 
came to the polls with the official package of ballots in a mutilated 
condition. There is no contest over that proposition. Wright 
did not even go on the stand. There is not a dot of testimony here 
which undertakes to repel the fact that an official ballot was taken 
while the package was in Wright's possession. 

Mr. Carrico. Did not that man who had it in his possession go on 
the stand and testify ? 

Mr. Saunders. No; Wright did not testify at all. When I state 
that a fact is proven I have always in mind some proposition about 
which no question can be raised under the evidence or with respect 
to which there is no evidence at all on the other side. This Wright 
matter belongs to the latter class. I was just going to say that with 
respect to this man Ferrall, who was offered as a judge, there is a con- 
ffict of testimonj^ as to whether the abstracted ballot was seen in his 
possession. The testimony of the election officer is that he saw him 
in the possession of this stolen ballot on the day of election. (See 
record, p. 378.) Ferrall denies the charge. The committee can weigh 
the evidence and determine which of the two is proper to be believed. 
(See analysis, p. 26, for Robertson's as well as Ferrall's testimony.) 
There is conflict on that point, but there is no conflict over the charge 
that this ballot was extracted while in the possession of the Republican 
judge, none whatever. The proof shows that the package of ballots 
went to him in good condition ; it shows that 1 50 ballots were called 
for ; it shows further that when the package was returned by him the 
seal had been defaced and the package tampered with. On the face 
of this injurious testiriiony Wright did not dare to go on the stand. 

Mr. Carrico. Does it not show it was sealed when the judges got it ? 

Mr. Saunders. No. The package was broken, and the seal had 
been tampered with. If you wish to go into that inquiry, I had as 
soon go into it now, as not. I refer the committee to the evidence 
in that connection, as afforded on page 26 of the analysis. 

The Chairman. There are some propositions of this case that we 
are very much more interested in than we are in reference to this 
question that has just arisen. 

Mr. Saunders. I think so, too, Mr. Chairman; but I am ready 
to meet any questions that may be raised on the evidence in this case. 

Mr. Thurston. V\^e are willing to admit you are loaded on every 
branch of the case. [Laughter.] 

Mr. Saunders. That admission does not help me, if I can not un- 
load with respect to those points that are of greatest interest to me. 
[Laughter.] If you look on page 26 of the analysis, which refers to 
the pages of the record, you will find the following as to VV^right : 

In the county of Pittsylvania, the ballots for the precinct of Design, were de- 
livered to one Wright, who had been appointed Republican judge for that precinct. 
These ballots were in a sealed package, containing as per the markings, 150. Section 
122e of the Code imposes upon the electoral board the delivery of the ballots, and re- 



PAKS<)^'S vs. SAUNDERS. 65 

quires the judu;e who receives them to receipt therefor and give a certificate that the 
seals have not been tampered with. When Wright brought the package of ballots 
to the polls on the morning of the election, the other judges ascertained that it had 
been tam])ered with, and u[)on proceeding to count the ballots as required by the sec- 
tion, .sui»ra, they found that 1 of the official ballots had been abstracted, and that 
the package contained only 149 ballots. This fact was clearly established, as the 
fact that the package of ballots went into Wright's hands in good condition. Wright 
was not put on the stand to explain the mutilated condition of the package, or to state 
how it was that a ballot came to be missing therefrom while it was in his official pos- 
session . 

With respect to the other complaint, that the man Ferrall was not 
appointed judge, it is admitted tliat he was olTered, and was rejected 
by the otlier jii(l(j;es on the ground that Ferrall was suspected of hav- 
ing the missing ballot. Later one of tJie judges states that he 
saw Ferrall in the possession of this abstracted ballot. Ferrall 
denied it. You can look to tiie record and determine for yourselves 
on which side the weight of the evidence is found. At any rate, the 
judges did not appoint iiim, but ap])oint('d another man, as they had 
the right to {\o. There is no requirement of tiie Virginia law that 
when a judge has to be picked up on the ground he must be of any 
particular party affiliations. To make this an imperative require- 
ment might frecpiently cause an inconvenient delay in opening the 
polls. TJiere is a conflict as to wliether any other Republican than 
Ferrall was offered for appointment. Witnesses for the contestant 
claim that other Rejjublicans were there. Witnesses for the con- 
testee deny it. This is not material, but the committee can weigh 
the testimony sid:)mitte(l on both sides. 

Now, Mr. Chairman, I will take up the county of Henry. I stated 
a few moments ago that there was gone from this case that feature 
of it which embodies the claim that the judges of election were not 
appointed in conformity with law, and that the contestant did not 
have adecpiate minority representatioii at the various election 
precincts in tiie district. 

The evidence taken in tiie coimty of Henry is to the effect tiiat 
the members of tiie contestant's own party organization in tiiat 
county were advised witii by tiie electoral board witli respect to 
the appointment of minority judges, and expressed themselves as 
being satisfied with the appointments theretofore made. (See 
Record, p. 249.) Complaint is made as to a judge at one precinct 
in Henry, the precinct of Mayo. And, by the way, I wish to direct 
the attention of the committee to the fact that tiie judges who 
acted in tiie election of 1908 were not appointed with special refer- 
ence to that election, but were practically nearly all holdovers. 

The republican judge who was appointed for tiie precinct of 
Mayo failed to appear on election day. Hence an appointment 
had to be made by the other judges and the appointee was a life- 
iong Republican. (See Record, p. 234. Taylor's evidence.) There 
are no complaints as to the judges in the counties of Patrick, Car- 
roil, and Grayson, and the city of Danville. 

With respect to tiie county of Fi-anklin, tiiere are complaints 
made as to two judges, but I will n|[:)t at tiiis time take up tliese 
cases, because I wish to hasten on to tiie other matters in which 
you say you are more interested. But I affirm again, that with 
respect to the general claim that the contestant (iid not get minority 

:^8069— 10 5 



66 PAES02srs vs. saundees. 

representation, it has been utterly refuted by the evidence to which 
I have directed the attention of the committee. The complaint 
as to the Frankhn judges is without merit. 

The contestant concludes his brief as follows: 

It is doubtful if a case could be presented showing generally such irregularities in 
the conduct of a congressional election as is presented by the record in this case. 
There was open and deliberate violation of the election laws of Virginia in forming so 
many of the election boards without permitting a Republican to be on the same. 

I invite the contestant to cite me any evidence in support of 
that allegation. Stop me now, and tell me where such evidence can 
be found in the record. 

Mr. Parsons. I will ask you this question, whether a single Re- 
publican was on any election board. 

Mr. Saunders. I will answer that question by asking you this 
one: Is there any law in the State of Virginia that requires that a 
Republican be appointed on the electoral boards ? I am talking 
about rights under the law. If the statute does not make this re- 
quirement you can argue, if you choose, that the law is not fair, but 
you can not maintain that it has been violated b}^ the failure to ap- 
point Republicans. Contestant and contestee alike stand on their 
legal rights, and if a law does not require a Republican to be appointed 
on the electoral board, no breach of the law has been committed by 
the failure to appoint one. I might as well complain that the deputy 
marshals and postmasters in my district are appointed from the Re- 
publican party when appointments are made. 

The Chairman. Do I understand you to take the position that the 
Republicans had been treated fairly in the selection of judges there ? 

Mr. Saunders. I do, in strict conformity with the law. 

The Chairman. And that the proper number of Republicans 
had been appointed. 

Mr. Saunders. Yes. I say that every right to which they were 
entitled under the law was given to them in this respect. 

The Chairman. I understand. But after the judges of election had 
been appointed, in the morning when they get together, if there is 
one absent, you claim in one place that a life-long Republican was 
appointed as judge of election, and you challenged the other side 
to point to a single place where they did not have representation. 

Mr. Saunders. Pardon me, Mr. Chairman, Mr. Parsons inter- 
rupted me, to ask if there was a member of an electoral board in the 
Fifth District that was a Republican, and I answered him by saying 
that, so far as I knew, I did not know of one. I might have asked 
him if he or his friends were giving the Democrats any appoint- 
ments in Virginia, but I did ask him to point me to the law which 
required that Republicans should be appointed on the electoral board. 
There may be Republicans on some of the boards, but if the law 
does not require them to be placed thereon, no breach of the law 
has been committed by the failure to appoint them. 

Mr. Thurston. If it will help the situation any, we are ready to 
admit that at most of the polling places there were "near" Republi- 
cans appointed. 

Mr. Saunders. You will have to admit something more than that. 
Why do you call the Republican appointees "near Republicans?" 
Why will you not 8a.j that they were straight-out Republicans ? 



PARSONS VS. SAUNDERS. 67 

There is no complaint that the Rej)ublican appointees were "near 
Republicans," save in one or two instances whicn are fully discussed 
in contestee's analysis. 

I am glad that I have been asked this question about the electoral 
boards. How can contestant come before a committee sitting as 
judges anil claim that a law has been violated when he can not point 
out the provision of the law which he alleges has been broKen? 
What is the use of complaining that Republicans have not been 
appointed on electoral boards, if the law does not require that this 
should be done ? 

Mr. Nelson. Is there an}^ claim that an electoral board made up of 
one party has caused any loss of votes ? 

Mr. Saunders. I can not say as to the claim, but I do say there is 
not a particle of evidence in the record to support such allegations, 
if it is claimed that they have been anywhere made. 

Mr. Nelson. Because you would not claim that if the State of 
Virginia has such a iaw, and that it results in disfranchising the 
Republicans, this committee would not have the right to go beyond 
that ? 

Mr. Saunders. Not at all. As I said in the conclusion of my 
answer, after referring to that portion of contestant's notice, in 
which he admitted that he had not made a sufficient technical state- 
ment of his case, ' ' I have no desire to avail myself of technical 
objections to hinder the contestant from making out his case, pro- 
vided I am given the opportunity to reply." I said to the gentleman 
then, and I stand by that statement now: "Take off the lid in the 
fifth district of Virginia, and exliibit any irregularities, any con- 
spiracies, or any wrongdoing wdiich has affected you to your preju- 
dice. I will not invoke any technical law to keep you from doing 
this." If the contestant has been prejudiced in his election in any 
way of which the law will take cognizance, by the action of any 
election oliicial in the fifth district, or if any action was taken there 
wdiich has operated to wrongfully deprive this contestant of a single 
vote, and the loss can be traced to this action, so that he has lost a 
vote which he ought to have received, I am perfectly willing for the 
committee to take up the inquiry and do justice. I am not inter- 
posing any objection to any proper inquiry. But I do not conceive 
that there is any breach of law^ in failing to make appointments of a 
particular political complexion when the law does not require it to 
be done. There are a great many appointments made in this coun- 
try, and when there is no requirement that these appointees shall be 
of any particular political faith, I notice that in some States Repub- 
licans are appointed and in others Democrats, according to the party 
which happens to be in power. So much for that. I read further 
from contestant's brief: 

There was gross neglect and violation of duty on the part of the officers who were 
required to prepare and present for the use of the election boards poll-tax lists as 
required by law. 

There is not a jot or tittle of evidence in this case of any improper 
manipulation of these poll-tax lists, except in the counties of Carroll 
and Grayson, where there were large Republican majorities and 
Republican officials. Mr. Carrico said on yesterday, with respect to 
the red-ink emendations in Grayson County, that the law provided 



68 PAESONS vs. SAUNDERS. 

that additions should be made to the hsts made by the courts, and 
that the clerk of the court should include in the list the parties who 
were entitled to be included by virtue of these court orders. If, Mr. 
Chairman, the evidence shows that there is a single addition, on the 

f)art of the clerk of a single court, by virtue of conformity to that 
aw, I have not a word of criticism to make as to such an addition. 
But there is no evidence of that sort in this case. In the county of 
Grayson the evidence is that on the night before election the treas- 
urer of that county was adding to these tax lists. It was not the 
clerk, but the treasurer, who made the additions, and the evidence 
through this record is that in this county the voters were continually 
going to the treasurer and getting him to add their names to the list. 
1 make a formal objection to this practice, because the contestant 
says in his notice and brief that after the list is once made up, as 
required by law, thereafter the treasurer can not dot an "i" or cross 
a " t" in connection therewith. That contention on his part is well 
taken, and I concur with it. 

Mr. Carrico. If the emendations that you speak of in red ink 
were not put on there by order of the court, and the clerk certifying 
this record out to the different judges of election being conclusive 
evidence, why was it not shown that the court did not place them 
on it ? 

Mr. Saunders. It is not conclusive evidence, because the evidence 
is that the treasurer was doing it on the night before election, and at 
other times, and the clerk does not go on the stand to show that the 
additions to the list were made by virtue of court proceedings, nor 
does the treasurer go on the stand to show why he was working on 
the lists the night before the election. The additions made by the 
treasurer are illegal and were not binding on the judges of election. 

Mr. Carrico. I think we differ on that. 

Mr. Saunders. I will take up this matter in connection with the 
evidence taken in the county of Grayson. In the county of Carroll, 
it is shown by one of the Republican judges of election 

Mr. Bennet. Will it interrupt you for me to ask you a question? 

Mr. Saunders. Not at all. 

Mr. Bennet. Is it not a fact that in the statement of this case by 
the chairman he said that there was no charge of fraud that had been 
relied on, and I could not understand in the opening argument that 
there was any charge of fraud. 

Mr. KoRBLY. Moreover, that statement went unchallenged at the 
time. 

Mr. Saunders. I am simpl}^ calling the attention of the com- 
mittee to the fact that charges of fraud and conspiracy were most 
abundant in the notice, and that these charges are not urged, on the 
part of the contestant, for the simple reason that he has ascertained 
that he can not sustain them before this committee. This is the 
first time I have been able to bring public attention to the fact that 
these sweeping allegations of wrongdoing, as contained in the notice, 
are utterly unsupported by the evidence in the record. 

Mr. Bennet. I would like to ask you a question about the treasurer 
adding the names; it is rather interesting. Under your statute if 
an elector had gone before the circuit judge on five days' notice, as 
provided by your statute, and the judge had made an order directing 



PARSONS VS. SAUNDERS, 69 

his name to })e put on the tax-paid hst, whose duty would it have been 
to have added his name? 

Mr. Saunders. The clerk's. 

Mr. Nelson. What is the purpose of giving notice to the treasurer? 

Mr. Saunders. That is a requirement of the law, and a just one. 
The treasurer makes up the list in the first instance, and he is cited 
to show why he failed to put on his list the voter who asserts in his 
petition to the court that he has been negligently overlooked. 

Mr. Tou Velle. While you are looking that up, perhaps you could 
answer this question: I understand that the contestant has aban- 
doned any proposition of fraud. Is your argument going to the 
effect of charging fraud on the other side? 

Mr. Saunders. Yes; abundant fraud on the other side, abundant 
evidence of bribery on the other side, abundant evidence of the 
improper use of money on the part of contestee's friends. (See 
pp. 18-19 et seq. of the analysis.) This evidence is in the record, 
uncontradicted and unchallenged. You asked me, Mr. Bennet, 
what is the law of Virginia in respect to sending out the tax list. 
If you will look at section 38 of the constitution of Virginia, found 
on pages 9 and 10 of the analysis, you will find the answer to your 
question. I think it is well enough for the laws of Virginia to be 
cited in connection with these queries. To some extent, as a matter 
of course, the questions of counsel and of the committee tend to 
hinder me from making a continuous argument, but I do not object 
to interruptions, for the reason that they enable me to get before 
the committee in the present connection some references that other- 
wise would have to be made at a later period of the argument. The 
committee will note the following provision of section 38, relative 
to sending out the tax lists: 

The clerk shall deliver, or cause to be delivered, with the poll books, at a reason- 
able time before the election, to one of the judges of election of each precinct of 
his county or city a like certified copy of the list, which shall be conclusive evidence 
of the facts therein stated for the purpose of voting. The clerk shall also, within 
sixty days after the filing of the list by the treasurer, forward a certified copy thereof, 
with such corrections as may have been made by order of the court or judge. 

I think that citation from section 38 affords the answer to Mr. 
Bennet's question. 

Mr. Bennet. No; it is not a complete answer. 

Mr. Saunders. What is the additional answer you want? 

Mr. Bennet. It says: 

The clerk shall deliver, or cause to be delivered, with the poll books, at a reasonable 
time before the election, to one of the judges of election of each precinct of his county 
or city a like certified copy of the list, which shall be conclusive evidence of the facts 
therein stated for the purpose of voting. The clerk shall also, within sixty days after 
the filing of the list by the treasurer, forward a certified copy thereof, with such correc- 
tions as may have been made by order of the court or judge, to the auditor of public 
accounts, who shall charge the amount of the poll taxes stated therein to such treasurer 
unless previously accounted for. 

Mr. Saunders. The last certified copy goes to tlie auditor of pub- 
lic accounts. Thus a double check is afforded on these court addi- 
tions to the tax list. 

Mr. Bennet. That does not say specifically who has to make the 
corrections in the list. That simply says that the clerk shall perform 
a ministerial dutv — that is, that he shall forward a list which has been 



70 PAESONS VS. SAUNDERS. 

corrected by order of the judges — but the list starts in the first instance 
from the treasurer, does it not ? 

Mr. Saunders. Yes. 

Mr. Bennet. Is there anything in your statute which says it is 
or is not the duty of the treasurer to carry out the order of the 
circuit judge? 

Mr. Saunders. The contestant in his brief and in his notice 
asserts, and I agree with him, that after the treasurer has once put 
his list in the hands of the clerk he can not touch it thereafter. 
Contestant asserts that himself. I agree to it as a proposition of 
law, so why discuss it? (See Record, p. 11, top of page. Contestant's 
first brief, p. 26.) 

]\lr. Nelson. If the court decides that they should properly go 
on there, does he not put them on? 

Mr. Saunders. No; the clerk puts them on. The treasurer is not 
an officer of the court. The clerk makes the additions. 

Mr. KoRBLY. When a vote is challenged, what steps are taken at the 
polls ? Does the man offering to vote file an affidavit setting up his 
right to vote? 

Mr. Saunders. There is no particular form in that respect. When 
a vote is challenged, the voter can be sworn, if it is desired for him 
to make a statement under oath as to the matters called in question. 
Other evidence, oral or documentary, can be taken in addition, if 
desired by any party to the challenge. 

^ir. Bennet. If I am interrupting you too much, stop me. 

Mr. Saunders. No; as I said, these interruptions enable me to get 
these different sections of the Virginia law before the committee. 
Then I can go on without having to refer to them. Now, look at the 
middle of page 10 of the Analysis: 

The original list returned by the treasurer shall be filed and preserved by the 
clerk among the public records of his office for at least five years after receiving the 
same. Within thirty days after the list has been so posted, any person who shall 
have paid his capitation tax, but whose name has been omitted from the certified 
list, may, after five days' notice in writing to the treasurer, apply to the circuit court 
of his county or corporation court of his city or to the judge thereof in vacation, to have 
the same corrected and his name entered thereon, which application the court or 
judge shall promptly hear and decide. 

You will note that the law requires the treasurer to make a list. 
That list is sent to the clerk and later is posted. It is posted at all the 
precincts in the county and the wards m a city. There are no laws 
m relation to election matters that are simpler than the present laws 
of the State of Virginia, and none more effective, to afford a man a 
chance to be heard or an opportunity to correct a mistake. 

Mr. Bennet. Then your contention is that, although section 38 
requires the notice to be given to the treasurer, the order of the 
judge is directed to the clerk ? 

Mr. Saunders. Of course. It is a court proceeding, absolutely, 
just as you will find, under our laws, many instances with respect to 
applications to the court for relief from errors in assessment in which 
the applicant gives notice to the Commonwealth's attorney and to 
the treasurer of the county, but the order made is the order of the 
court. This order is certified by the clerk, who is an officer of the 
court, and entry of the same is made in the court records. 



PAESONS VS. SAUNDERS. 71 

Mr. Nelson. Wlien a clerk has that permission from the judge, he 
brings that 

Mr. Saunders. No; you see the apphcant whose petition is 
granted is added to the treasurer's hst by virtue of the order of the 
court. 

Mr. Nelson. On the poll-tax list ? 

Mr. Saunders. Yes. He goes on the list. He is added to the poll- 
tax list, as contemplated by section 38, when a man conforms to its 
requirements. 

Mr. Thurston. It would be a remarkable thing, Mr. Saunders, if 
the treasurer, who is the one defined in that proceeding, was not the 
party to be authorized by the court to make the correction. 

Mr. Saunders. He is not the authorized party, nor could he be 
such, since the list which is to be amended is no longer in his possession 
but is in the custody of the clerk of the court. 

Mr. Thurston. There is nobody else before the court. 

Mr. Saunders. You are arguing a proposition, Senator, that is 
contrary to the position taken by your client, but I will say in this 
connection that the analogy is precisely that of a man who gives his 
adversary notice to obtain judgment. When the judgment is ob- 
tained it is the judgment of the court, and it is entered up and certified 
by the clerk who is the hand of the court. 

Mr. Thurston. I am not insisting this is material to the case at all, 
but I am rather interested in this school of discussion. 

Mr. Saunders. The treasurer is cited to appear because he has 
made the list, and he is required to show cause why the applicant's 
petition to go on the list should not be granted. 

I can give you a sufficient reason for bringing in the treasurer as a 
party to the application. The taxpayer who has been omitted from 
the list alleges in his petition that this omission is due to the negli- 
gence of the treasurer. Hence when his notice brings the treasurer 
before the court, tlie latter in substance says to this officer: "Why 
did you not put this man on the list ? He asserts that he is qualified. 
What have you to say for yourself ? ' ' Then the treasurer must fur- 
nish his explanation. If the application is allowed the voter is 
ordered to be placed on the list, which, as I have stated, is in the 
custody of the clerk and not of tlie treasurer. Moreover, this list in 
the amended form is required to be certified to the auditor of the com- 
monwealth, as a permanent record in the archives of the State. This, 
you will note, is required to be done by the clerk of the court (see 
sec. 38). The treasurer has nothing further to do with the list 
after he forwards it to the clerk, and, as contestant very properly 
observes in his notice and brief, an}^ subsequent addition to the list 
on the part of the treasurer is a violation of law. 

Mr. Bennet. Yes; but the tax pay Hst, that is in the custody, by 
that time, of the judges of election 

Mr. Saunders. Up to the time under discussion the list has not 
reached the judges. 

Mr. Bennet. When does it reach them ? 

Mr. Saunders. After the additions providefl for by law have been 
made. 

Mr. Bennet. Let us see about that. There is a list that goes to 
some one thirty days before the election; to whom does that list go? 

Mr. Saunders. That is the list we are talking about. -j^ 



72 PAESONS VS. SAUNDERS. 

Mr. Bennet. And that is posted ? 

Mr. Saunders. No; the hst that is posted is the Hst that is sent by 
the treasurer to the clerk of court at least five months before election. 
(Constitution, sec. 38.) ^ 

Mr. Bennet. You do not mean to say that that hst is posted for 
six months ? 

Mr. Saunders. Within ten days of the receipt of that hst by the 
clerk he places a sufficient number of copies of the same in the hands 
of the sheriff or sergeant for posting at the front door of the several 
polling places in the county or city, as the case may be. 

.Mr. Nelson. That is simply to give warning? 

Mr. Saunders. Yes. 
• Mr. Bennet. Is that posted six months ? 

Mr. Saunders. No; not so much as that. The list is lodged with 
the clerk at least five months before the election, and copies of same 
are forthwith posted. There is no requirement that they shall be 
taken down. Hence tliey may stay posted indefinitely. 

Mr. Bennet. And it is that list which the voter has to consult to 
show if he is on there ? 

Mr Saunders. That is the list. He is not confined to consulting 
the list at his precinct, but it is generally the most convenient one. 

Mr. Bennet. But, as a result of the order of the judge, that par- 
ticular list does not change ? 

Mr. Saunders. The list that is i)osted at the various precincts 
may be changed by order of court. The changes are made in the 
way of corrections in the original list, which was filed with the clerk 
by the treasurer, pursuant to law. The lists which are posted are 
copies of this original. 

Mr. Bennet. Wliere is the original ? 

Mr. Saunders. In the custody of the clerk of the court. 

Mr. Bennet. At the county seat ? 

Mr. Saunders. Yes; at the county seat, at the court-house. 

The Chairman. The treasurer makes up the list in the first place, 
does he not ? 

Mr. Saunders. In the first instance, yes. 

The Chairman. A large number of persons may be denied a place 
on the list ? 

Mr. Saunders. Yes; that may happen. 

The Chairman. And they go to the court? 

Mr. Saunders. Yes; if they desire to do so. 

The Chairman. And the court issues an order. To whom is that 
order issue'd ? 

Mr. Saunders. To the clerk. 

The Chairman. Or to the treasurer? 

Mr. Saunders. To the clerk. 

The Chairman. Suppose there is no compliance with that order? 

Mr. Saunders. How do you mean compliance with the order? 

The Chairman. By putting the names on the list. 

Mr. Saunders. Well, that suggests a very interesting situation. 
According to the contention of these gentlemen, those voters could 
not vote, by reason of the fact that they were not on the list, though 
this failure was due to official negligence, and not to any fault of theirs. 

The Chairman. That is not an answer to my question. 



PARSONS VS. SAUiSIOEKS. 73 

Mr. Saunders. I think it is, unless you have soniethiuii; else in 
mind. 

The Chairman. Suppose the clerk and treasurer both decline to put 
the names on the list after the judj^e decides they should a:o ? 

Mr. Saunders. Very well. 

The Chairman. If you wanted to o;et tiiem on, what could you do? 

Mr. Saunders. Simply this, the voter would apply to the court 
for a mandamus to compel the clerk to perform the ministerial act 
of addino; to the list the names which the order of the court had 
theretofore ordered him to add. 

The Chairman. You would not make the treasurei- a party to 
that ? 

Mr. Saunders. No; he is out of it. He was brout!i;ht in first, as 
the Commonwealth's attorney is brought in, when you seek to correct 
an erroneous assessment. He is merely required to show cause why 
the applicant's request should not be g-ranted. 

Mr. KoRBLY. Would not the clerk be in contempt if he refused to 
carry out the order of the court? 

Mr. Saunders. Certainly, but 1 was answering the chairman's 
question. Of course, if the clerk failed to carry out the order of the 
court he could be punished for contempt. But, apart from that, a 
mandamus would lie to compel him to perform the ministerial act 
of adding these names. There is no trouble at all about the legal 
remedies. But the chairman's question is a very pertinent one 
when considered in connection with contestant's argument that 
presence on the list is a prerequisite to voting. I thought he had in 
mind the status of a man who had obtained an order from the court 
directing his name to be placed on the list but who had subsequently 
been omitted by the negligence of the clerk. In such a case, according 
to the contention of contestant, though he had taken all the steps 
required by law, he could not vote. According to my contention 
he could vote, because he could prove that he had paid his taxes, 
or that the court had ordered him to be placed on the list. That is 
one of the illustiations I expect to use when I come to that portion 
of my argument, in which I shall undertake to show to the committee 
that the constitution does not reciuire a voter's name on the tax list 
as a prerequisite to voting. 

The Chairman. Suppose the court had decided that they were 
not entitled to go on the list; that if they apjieared at the polling 
place 

Mr. Saunders. No; that would be a case where they had been 
parties to a court proceeding, and of course the findings of the 
court would stop them from maintaining any contention in conflict 
with those findings. 

Mr. Bennet. Carrying that just a little further, suj)|)ose a voter 
in one of these precincts — we will take Mount Zion. 

Mr. Saunders. That was not much of a Zion for me, though. 
[Laughter.] 

Mr. Bennet. Suppose a voter in that precinct had gone to the 
circuit judge and the circuit judge had made an order in vacation 
refusing to add his name to the list. While that is a matter of public 
record, in a strict sense, it was not a matter of wide publicity, possibly. 
Supposing a voter had gone with his three tax receipts to the judges 
of election in Mount Zion on election dav anil had sworn he had 



74 PAESONS VS. SAUNDERS. 

paid the full three years' taxes in time. You say that they ought, 
despite the fact of the order of the court, take his vote ? 

Mr. Saunders. No; I just answered the chairman to the effect that 
under the circumstances indicated the voter would have no right to 
do anything of the sort. 

Mr. Bennet. He would have no right, but the judges of election 
would have no knowledge. 

Mr. Saunders. If he did such a thing as that his vote would be 
illegal, and if it was cast for the contestee and that fact could be proven 
of course this committee would eliminate it, and if cast for the con- 
testant upon proof of that fact you would deduct it from the con- 
testant's vote. Of course that would be a fraudulent vote, just as a 
man's vote would be illegal if without the payment of his taxes his 
name had been fraudulently included in the tax list, whether by the 
clerk or the treasurer. I want to show you in this connection- 

Mr. Howell. There is another case that comes to my mind, and 
that is the case of a voter who had not applied to a court to have his 
name put on the list, but on the day of election he presents proof to 
the judges of election of his right to vote by reason of having been a 
poll-tax payer for three years. Would you contend he had a right to 
vote? 

Mr. Saunders. Absolutely; because the constitution says that 
when a man shall have paid his taxes for three years prior to the 
year in which he offers to vote, and within the prescribed time, he 
is at once, ipso facto, by virtue of that payment, clothed with the 
right of suffrage. Certainly, I contend that such a voter is entitled 
to vote. 

Mr. Carrico. I see you want to go strictly by the law, and the 
law before 1908 was not mandatory that the treasurer should date 
the day on which the poll tax was received. Suppose a voter three 
days previous to election would pay up a poll tax assessable against 
him, and then come in and present his tax receipts and offer to 
qualify ? 

Mr. Saunders. In the first place, if that voter swore that he had 
paid his taxes six months prior to the election, when as a matter of 
fact he had not done so, he would be guilty of perjury. His vote, 
under such circumstances, would simply be an illegal vote. 

Mr. Carrico. Suppose, as the record shows in a great many 
instances, he does come in, and state that he has paid his poll tax ? 

Mr. Saunders. I do not knov/ about so many instances, but if, as 
a matter of fact, the voter satisfies the judges that he has paid the 
required taxes, he is entitled to vote. The payment of the prescribed 
taxes within the prescribed time is the prerequisite of the constitu- 
tion. There is no other prerequisite with which I am acquainted, so 
far as the taxes are concerned. 

Mr. Howell. I would like to have this cleared up in my mind. It 
seems to me that under the laws of Virginia these poll-tax lists are 
regarded as sacred, as not to be interfered with, unless by an adjudi- 
cation of the courts. 

Mr. Saunders. Well, they can not be added to save by order of 
court, but that does not mean, that the presence of a voter's name 
thereon is a prerequisite to the right to vote. 

Mr. Howell. Under the answer to my last question you really vest 
the judges of election with the authority which your law vests in the 
court. 



PAKSONS VS. SAUNDERS. 75 

Mr. Saunders. Not a bit. The action of the judges of elections 
does not add anything to the tax hst, which is prepared by the treas- 
urer from liis books. But your question suggests to my mind another 
query, just as tlie question that was asked by the chairman suggested 
an interesting query in that connection. Take the case of a man 
who has actually paid his taxes in time and has his tax tickets in his 
j)Ocket, ought he to be excluded on election day if he has been negli- 
gently omitted from the list ? 

Mr. Howell. Why did he not go according to law? 

Mr. Saunders. He is going according to law when he proves to 
the satisfaction of the judges of election that he has paid his taxes. 

Mr. Nelson. He has a choice. 

Mr. Saunders. You took the word out of my mouth. He has a 
choice in that respect. I will show you that it is well for a voter to 
be on the list for purposes of convenience. These considerations of 
convenience furnish a sufficient justification for his making the appli- 
cation. But at the time the list is posted a voter may be out of the 
county. Frequently voters are. Frequently it happens that a man 
hasn't the opportunity to take these steps within the thirty days 

f)rescribed. Frequently his business is such that he does not see the 
ist, and if he has a choice he ought not by reason of failure to exercise 
one form of choice be debarred from his constitutional right of suf- 
frage. The other road to the polls ought to be open to him. 

The Chairman. What would be the sense of him going to court and 
hiring a lawyer ? 

Mr. Saunders. He does not need to hire a lawyer. 

The Chairman. What would be the sense of his going to court if 
all he had to do was to go to the judges on the day of election? 

Mr. Saunders. I will tell you why. I contemplated taking that 
up later on in my argument. The answer to that is this: The list, by 
virtue of the constitution, and by virtue of the statute laws of Vir- 
ginia, which simply follow the constitution, is made conclusive evi- 
dence of the facts it contains for the purposes of voting. So that 
when a man who is on the list comes to the election and some question 
about the payment of his taxes, all that he needs to do is to say to the 
judges: ''Look at the list. I may be improperly on there, but, so 
far as you are concerned, if I am there, I have a right to vote." Other- 
wise, when he comes to vote and is challenged, he may have trouble 
in proving his payments. He may not have his tax tickets with him; 
the treasurer to whom he paid them may not be available; he may 
not be in a position to satisfy the judges that he has discharged the 
constitutional prerequisite. Therefore it is to his interest, if oppor- 
tunity offers, for him to get on this list. 

The Chairman. Would he not have to present the same evidence 
to the court that he would to the judges of election? 

Mr. Saunders. Exactl}". 

The Chairman. If he had the evidence to present to the court. 

Mr. Saunders. He may not be in a position to go to the court. 
That is the question I am presenting. Many people are not in this 
position. Many are traveling men, and frequently it is not con- 
venient for them to come back, maybe a great distance, to go into 
the court. Frequently the judge is in another county. Of course, a 
man can come back, but it may be inconvenient for him to do so. 
There is no technical difficulty about making the application. Is it 



76 PARSONS VS. SAUNDERS. 

a practical difficulty, growing out of the fact that the voters are, in 
many instances, not apprised of the situation in time to avail them- 
selves of the opportunity afforded by the statute to get on the tax list- 
Mr. Thurston. If it does not interfere, that arises in every case 
of a registration law. Hundreds of people are out of the State during 
the time in which they might register. Does the fact that they are 
out of the State prevent their right of suffrage ? 

Mr. Nelson. On that point, Senator, as I understand Judge 
Saunders's contention, the matter of the poll-tax list is like the regis- 
tration law in my State. You can register so as to avoid the difficulty 
of swearing in at an election, but you can come in, and if you can 
satisfy the election judges that you are a qualified elector by filing 
an affidavit, with two corroborating affidavits, you have a right to 
vote. 

Mr. Thurston. Most of the States have a provision whereby you 
can have a right to swear your vote in. In my State you can secure 
a certificate from the county clerk, or make a due proof there that 
you were absent from the State, but if you were not expressly author- 
ized by statute you could not do it. It has been held over and over 
again that a man, in order to avail himself of the right to vote, must 
comply with the registration law, and where there is no provision 
by which he can swear his vote in, unless he has been there and regis- 
tered, he could not vote at that election. 

IVir. Saunders. That is entirely true. I do not gainsay that 
proposition of law, but the question of the gentleman suggests an 
interesting situation in that connection and I am going to take it 
up while I have it in mind. 

Mr. Carrico. Suppose this question should arise. You understand 
our statute provides a man may apply within thirty days to be placed 
on this list ? 

Mr. Saunders. Yes. 

Mr. Carrico. Suppose he applies to the court forty days after the 
poll-tax list is prepared, and the court turns him down, would he 
then be a legal voter? 

Mr. Saunders. Certainly he would be. The court would be with- 
out jurisdiction in the case supposed, and its failure to afford a hear- 
ing, or its action in refusing a hearing under the circumstances 
indicated, would not hinder the voter from asserting other rights 
elsewhere. What the Senator says with respect to registration is 
absolutely true, and yet it is true in that connection that if a man 
performs on his part what is necessary to be done for the purposes 
of registration, and there is any failure on the part of the officer to 

Eroperly record him, that man, on proof of the facts supposed, can 
e admitted to vote by the judges of election. 

The Chairman. That would have to be under the law of the State. 

Mr. Saunders. Certainly; I am claiming to proceed under the 
law of my State. But it is a general principle of law that when a 
voter does what the law requires of liim, and the failure to perform 
thereafter is the failure of some official, then that failure does not 
affect the voter. That is a general proposition, in respect to the 
right to vote, which is universal, as I understand, throughout the 
United States. 

The Chairman. Under your state law he is required, in the first 
place, to go to the court. Now, he has not gone to the court; he has 



PARSONS VS. SAUNDERS. 77 

failed to comply with the recjuiiement. Where is there any other 
lequirement different fiom that laid down by the law? 

Mr. Saunders. To go into that would require me to take up the 
entire question that I expect to discuss at a later stage of my argu- 
ment. I maintain the proposition that our constitution does not 
require a voter who has paid his taxes to go to the court to get on 
the list under penalty of losing his vote. 

The Chairman. All he has to do is to go to the judges of election. 

Mr. Saunders. If he prefers to take that course. He has his 
choice between getting on the list and proving his case before the 
judges of election. 

The C^hairivian. The only point 1 am anxious about there is, 1 
want you to point out to the committee whether there is any remedy 
for the voter in your State if he does not comply. 

Mr. Saunders. There is no remedy unless he is permitted on elec- 
tion day to go to the judges of election and say in substance: "I 
demand to be allowed to vote on j)i'oof of payment of my taxes. 
The constitution gives me a right to vote upon payment of the pre- 
scribed taxes in the prescribed time. I am prepared to show that I 
have discharged the constitutional prerequisites, and as such am a 
legal voter." 

The Chairman. Tlicn, is tliere any necessity for a list at all? 

Mr. Saunders. The necessity for the list has been pointed out in 
answer to the question of' the gentleman from Wisconsin. The list is 
a matter of convenience for the voter, because the law says, once on 
that list, even if you have not paid your taxes, you are entitled to vote 
To show you how far this principle goes, I will call your attention to 
the fact that in the county of Carroll the treasurer put on the list a 
man wlio was on the delinquent list, as is established by the evidence. 
Yet that man, although he had no moral right to vote, walked up 
and voted by virtue of this tax list, merely because it was conclusive 
evidence that he had paid his taxes, for the purposes of voting. 

Mr. Bennet. Was he challenged ? 

Mr. Saunders. No; he was not challenged, })ut the failure to chal- 
lenge him made no difference. 

The Chairman. Would it not have made a difference? Suppose 
he had presented himself to vote, and you challenged him? 

Mr. Saunders. In the case I speak of, the voter was on the list. 

The Chairman. Is that list conclusive? 

Mr. Saunders. Absolutely, of its contents, for the purposes of 
voting. 

The Chairman. You could not introduce any evidence? 

Mr. Saunders. You can not introduce any evidence to contradict 
its contents. The constitution makes the list, so far as any contest 
of same is concerned, absolutely conclusive evidence of the facts 
therein stated for the purposes of voting. Hence, if a man appears 
on the list for three years as having paid his taxes, though as a 
matter of fact, he has never paid a dollar of them, he is entitled 
to vote. 

The Chairman. Suppose you challenged him because he had not 
paid the taxes, and you came to Congress with a contest; what 
would Congress do ? 

Mr. Saunders. When you came to Congress with a contest, the 
committee would go back of the list. They would say, in substance, 



78 PAESONS VS. SAUNDERS. 

to the illegal voter: "While you were able to force your vote upon 
the judges, by virtue of the fact that the evidence which you offered 
was conclusive for the purposes of voting, yet, as a matter of fact, 
you were an illegal voter, because you had never paid your taxes." 

Mr. Bennet. What is the number of that constitutional section ? 

Mr. Saunders. Thirty-eight. It is on pages 9 and 10. It begins 
on page 9 of the analysis. 

Mr. Tou Velle. Have they any rule or class of evidence that is 
necessary to be furnished to these judges upon which they base 
their decision as to qualifications ? 

Mr. Saunders. None whatever, except this list, and that on one 
point) alone, and the registration books. 

Mr. Tou Velle. As to the others, those who are not on this Ust ? 

Mr. Saunders. It devolves upon them to show that they have per- 
formed the constitutional prerequisite, which is the payment of taxes 
for three years prior to the year in which they offer to vote, at least 
six months prior to the election. 

Mr. Carrico. Can you cite any law as to that ? 

Mr. Saunders. I stand upon the constitution. In addition, I will 
cite the decisions of' several state courts. 

Mr. Bennet. Before you leave that, m order to get it straight, 
you said yesterday that I stated the contention between the two sides 
accurately. I will state it for the benefit of Mr. Tou Velle, because 
he was not here at that time. The contest tot contends that the con- 
stitutional provision in relation to the posting of the list and the put- 
ting on of additional names by the circuit judge, and the five days' 
notice to the treasurer, is conclusive, and that the list so made up is 
the only evidence of tax-paid voters of that precinct that can be con- 
sidered. Your contention is that the constitution providing that an 
otherwise duly qualified elector who has paid his poll taxes for the 
three preceding years is qualified to vote, that the proof can be made 
aliunde to the judges of election on election day, despite 

Mr. Saunders (interrupting). The fact that he is not on the list? 

Mr. Bennet. Yes. 

Mr, Saunders. Yes, sir; that is correct. 

Mr. KoRBLY. In other words, the contestant contends that the list 
is also a prerequisite to vote, whereas the contestee contends that the 
payment of taxes is the sole prerequisite ? 

Mr. Saunders. Yes, that is true. 

Mr. Carrico. I beg your pardon. 

Mr. Saunders. Well, I will state the proposition, and then you can 
see if you differ with me. Mr. Chairman, the contestant contends 
that you must pay your taxes, and in addition contends you must be 
on the list, so he insists that there is a double prerequisite. I con- 
tend that you must pay your taxes as required by law, and that the 
list is merely one means of showing that you have performed the con- 
stitutional prerequisite, not that the list is a prerequisite, but is an 
evidence of the fact you have complied with the requirements of the 
constitution. It is an evidence or payment, but not the exclusive 
and only evidence. 

Mr. Thurston. Our contention is very simple and very clear. We 
do not want to be misunderstood about it. Our contention is that 
where the law, the constitution and the law, have provided for a reg- 
istered list of tax-paid voters, has provided that that list shall be made 



PARSONS VS. SAUNDEKS. 79 

public in a manner j)ointed out by the statute, thereby givina,- notice 
to everybody who is interested, the statute and the constitution then 
have given a remedy by which his name can be ])laced upon that list 
if he is not there before election day; that that is his sole remedy; 
that does not confer on any other body or tribunal the power to put 
him on that list, and that that list itself, made up after a party has 
had his remedy given by the statute, is conclusive, both as to the 
right of the men on there to vote and of the fact that nobody else on 
there had the right to vote. 

Mr. KoRBLY. In other words, presence on that list is a prerequisite 
to the right to vote ? 

Mr. Saunders. That is tlu>ir contention, exactly as I have stated it. 
My own contention is that pajnnent of taxes in the prescribed time 
is the only prerecpiisite to the right to vote in Virginia, providing, of 
course, always, that you are duly registered. 

Mr. Carrico. One more thing. Judge, before you pass on from that. 
In section 38 of the constitution we claim that there the constitution 
provided what evidence should be received as to the fact that they 
liad paid their poll tax. 

Mr. Saunders. That I deny, so far as it is contended that the list 
is the exclusive evitlence of payment. 

Mr. Carrico. It also goes on to say that the legislature may pre- 
scribe any other form of evidence. It says : ' ' Further evidence of the 
prepayment of the capitation taxes required by this constitution as a 
prerequisite to the right to register and vote ma}" be prescribed by 
vote." We claim that no further evidence has been prescribed. 

Mr. Saunders. There is no difference of understanding between us 
as to your contention. I know your contention exactly. In addition 
to that, and merely as another illustration of their proposition, con- 
testant claims that this list is not only conclusive, inclusively, but con- 
clusive, exclusively. 

Mr. Carrico. That is right. 

Mr. Saunders. I will discuss that proposition later. Instead of 
holding that the list, as I said before, is a prerequisite, I regard it 
merely as one of the evidences by which a man can prove that he 
has discharged the constitutional prerequisite. 

The Chairman. Has this question ever been before the courts in 
your State ? 

Mr. Saunders. It has been before the lower courts. 

The Chairman. What do they say about it? 

Mr. Saunders. I will submit in this connection and on this precise 
proposition the conclusion of two visi finus courts, which hold that 
presence on the tax list is not required as a prerequisite to voting. 

Mr, Carrico. The court in our district holds differently. 

>Ir. Saunders. I do not know anything about the attitude of the 
court in your district. You ought to have that opinion here. The 
opinions which I will file are not ex parte opinions, but are opinions 
delivered in election contests in which the precise proposition raised 
in this case was presented for decision. There is no need for these 
opinions, in my judgment, for a careful perusal of the Constitution 
will satisfy the committee that my contention as to its meaning is 
correct. Still I will file them. 

Mr. Parsons. Was that since the statute was enacted ? 



80 PARSONS VS. SAUNDERS. 

Mr. Saunders. The statute is the Constitution, and the Constitu- 
tion is the statute. The statute can not effect any change in the 
Constitution. 

Mr. Parsons. There has been no election case since the enactment. 

Mr. Saunders. That makes me out a falsifier, I am afraid. 

Mr. Parsons. Oh, I did not mean to be offensive. 

Mr. Saunders. Of course, I merely said that in jest. 

Mr. Carrico. It has never been before the court of appeals. 

Mr. Saunders. No; that is not the question that was asked me. 

Mr. Nelson. I want to ask you what I asked Mr. Carrico yester- 
day. I want to get at the practice. Do you know what the practice 
has been with reference to this '^ 

Mr. Saunders. He answered that. Some of the judges of elec- 
tion hold one way and some the other. Some of the judges. Demo- 
crats and Republicans, hold that the list is conclusive, and if you 
are not on the list you can not vote. At some of the precincts in 
Grayson the judges ruled that the list was exckisive evidence, while 
the judges at other precincts ruled that it was not essential to be on 
the list and that if the voter's taxes had been paid, as prescribed, he 
could vote. So far as I am aware, the general rule in Virginia is 
that if a man has paid his taxes in time he is permitted to vote. 

Mr. Nelson. In other words, it is an unsettled question? 

Mr. Saunders. Yes. 

Mr. Carrico. You are speaking of judges of election? 

Mr. Saunders. Yes. 

Mr. Carrico. There are no Republican judges, of course? 

Mr. Saunders. I suppose it is another case of wrongdoing, that 
we have elected Democratic judges. [Laughter.] 

Mr. Carrico. The judge of our court holds one way and the 
judges you speak of hold differently. 

Mr. Saunders. I do not know; has it ever been before him? 

Mr. Carrico. Yes. 

The Chairman. I would like to have decisions cited. 

Mr. Saunders. I will cite them. All this is a digression from the 
chain of my argument. 

To come back to the section of contestant's brief, from wliicJi I 
was quoting, I will read the following: 

There was gross neglect and violation of duty on the part of those officers who were 
required to prepare and present for the use of the election boards the poll-tax lists as 
required by law. 

I challenge these gentlemen, in that connection, to produce the 
evidence of any gross neglect or violation of law with reference to 
the preparation of this poll-tax list on the part of any Democratic 
officials. I will show the committee by the testimony of a Repub- 
lican judge in Carroll County — a strong Republican county, by the 
way — that the judges at one precinct had a list for use on election day, 
with pencil emendations thereon, that were not present on the certi- 
fied list of the treasurer when that certified list was exhibited to the 
witness on the stand. That is the testimony of a Republican. 

Mr. KoRBLY. How many names, do you remember? 

Mr. Saunders. Quite a number of them. One of the names he 
testified was on the back of the list, written there in pencil. 

Mr. Carrico. That was a list certified out by the clerk of the court 
as a voting list. 



PARSONS VS. SAUNDERS. 81 

Mr. Saunders. No, sir; he testified to this effect; that the list 
they used on election day had pencil emendations in the columns 
and he did not know where they came from ; also pencil emendations 
on the back of the list. He was confronted with a certified list from 
the clerk of that county, and he said, "This is not the list I had on 
election day." The question is, where did those pencil additions 
come from ^ 

The Chairman. What witness was that? 

Mr. Saunders. That was Mr. Byrd, at Sulphur Springs. (See Rec, 
Byrd, pp. 517-18.) 

Mr. Nelson. I suggest the judge follow his argument. 

Mr. Saunders. I do not object at all to questions. 

The Chairman. What witness? 

Mr. Saunders. I will give you the witness; I have the reference 
here. Look on page 518 of the testimony of Mr. Byrd, Republican 
judge, pages 517 and 518. In the middle of page 517 you will see 
this : 

Q. I here hand you a certified tax list containing the names of the electors certified 
by the treasurer of Carroll County to the clerk containing the names of the electors 
who had paid their taxes for three years prior to the 3d day of May, 1908, and were 
entitled to vote. Examine that list and see if you find on there the name of H. M. 
Jones. — A. Well, I looked for it a while ago, but I don't find it. I don't know, but 
I think I ought to have the list that we used over there, because there was some names 
wrote on that list. My reply is that it wasn't on this list. 

Q. Were the names written on it? — A. Yes, sir; in a pencil. 

Further, in that connection, you will see that on the back of that 
list was a name added in pencil. That is a most extraordinary way, 
I will say, for a clerk of a court to correct a record pursuant to an 
order of court. The clerk does not go on the stand to prove that 
these emendations or additions were court additions proper to be 
made by him. 

Mr. Carrico. Let me ask you this question: The clerk certifies 
those lists out and they go out with the ballots for the judges to be 
guided by in the voting at that precinct, although not as the cer- 
tified list. 

Mr. Saunders. Yes, they go out, but possibly in that county, as 
in the county of Grayson, the treasurer on the night before, was 
figuring over the lists, and adding names in pencil, or in red ink. 

Mr. Nelson. I understood from your contention that the treas- 
urer's list is the original of the poll-tax list, and then it goes to the 
clerk of the court ? 

Mr. Saunders. Yes. 

Mr. Nelson. How could the treasurer have put those names on 
after the clerk had it ? 

Mr. Saltnders. Only improperly. 

Mr. Nelson. How does he get the list? 

Mr. Saunders. He has no authority whatever to get the list. 

Mr. Nelson. I understood he had nothing more to do with it. 

Mr. Saunders. Officially, certainly not. On page 518, you will 
find this testimony: 

Q. Examine said tax list and see if you find the name of W. M. Vaughan thereon. — 
A. No, sir; I don't think it is here. I will see. No, sir; it is not on here. 

Q. Any of these men that you have mentioned written on the back of the list? — A. 
I could not tell you where they were written; all through the book. Some were 
written on the back of the book. 
38069—10 6 



82 PARSONS vs. SAUNDERS. 

Do you suppose that any clerk bearing in mind the regularity that 
goes with court proceedings would have added these names in this 
slipshod and extraordinary manner? If these names were added 
pursuant to court orders, the fact could have been easily established. 
Bo you think the names would have been added to the list in any 
such irregular manner as that by a clerk of court — some in pencil, 
;and some written on the back of the document ? 

Mr. Nelson. Your objection is that they were in red ink, in pencil, 
and on the back ? 

Mr. Saunders. My contention is that these were not the additions 
authorized by law, whether in pencil or red ink. 

Mr. Nelson. What are the facts that lead you to make that state- 
ment ? 

Mr. Saunders. The facts are the statements of the witness Byrd, 
from whose evidence I am reading. This man is a Republican, and 
was a judge of election at Sulphur Springs, where I received 4 votes. 
He was shown a certified list from the clerk that did not contain 
these pencil additions. I submit that the proof as to these addi- 
tions puts the whole list at this precinct under suspicion, and suggests 
that in other precincts the lists nad been improperly padded . 

Mr. Carrico. Let me ask you this: In the county of Carroll, the 
clerk was placed on the witness stand by the contestee, and the 
orders of the court are a matter of record, are they not ? 

Mr. Saunders. Certainly. 

Mr. Carrico. And would it not have been easy to have shown that 
these parties were not placed on there by the court — by the clerk? 

Mr. Saunders. When the clerk was put on the stand, don't you 
think the contestant ought to have been the one to furnish his own 
evidence and to clear up his own case, when that case was under 
suspicion? There is more of that deposition. I expect to touch on 
that later. 

Mr. Tou Velle. The clerk sent out a certified copy of the names 
and the additions ? 

Mr. Saunders. Yes. 

Mr. .Tou Velle. And you handed to the clerk a certified copy and 
he identified that ? 

Mr. Saunders. No; the judge of election, the Yerj judge who had 
used the list for purposes of voting at this precinct v/as presented 
with a certified list, and he stated tliat these pencil additions were not 
on the list shown him but were on the list he used at the election. 

Mr. Bennet. As I understand, this clerk of Carroll County was 
■called as a witness and neither side asked him any questions about 
these emendations or additions ? 

Mr. Saunders. So far as I recollect, they did not; that is true, but, 
•as I stated a moment ago, when that list was under suspicion, by 
reason of the evidence in this record, to which I have called your 
attention, was it not the duty of the contestant to undertake to 
remove these injurious suspicions and to show ttiat these additions 
were regular and made by order of court ? 

Mr. Nelson. I want to get at what you base this on. This judge 
of election testified, as you claim 

Mr. Saunders. Here it is. 

Mr. Nelson (continuing). That when he first saw the list it con- 
tained a certain number of names, and afterwards he claimed they 
were not the same names ; that there had been names added ? 



PAKSONS VS. SAUNDERS. 83 

Mr. Saunders. Yes; these names were not on the Hst that was 
handed to him when on the stand. 

Mr. Bennet. Oh, no. As I understand it, the hst that was shown 
him on the day he testified is not the hst he used at aU; it is just a 
certified copy. 

Mr. Saunders. That is what I say. It was a certified hst, and the 
other hst was a certified hst, and the two ought to be identical unless 
there had been some court additions to the treasurer's list. 

Mr. Nelson. That is what I had in mind. 

Mr. Bennet. But his contention is that the certified list he had on 
election day was different. 

Mr. Saunders. It was different; he swears it is different. 

Mr. Bennet. There is no contention that the two lists were the 
same lists at all. 

Mr. Saunders. Yes; the lists ought to have been the same, unless 
there were some court additions. They both purported to be copies 
of the treasurer's lists. 

Mr. Bennet. But not physically the same papers'? 

Mr. Saunders. Oh, no. 

Mr. KoRBLY. In other words, the one that had the pencil emenda- 
tions on it was not before the witness ? 

Mr. Saunders. No. In connection with the Grayson County you 
will find on page 323 — I suppose the gentlemen object to this evidence 
as hearsay. 

Mr. Bennet. Before you go into that, what should have become 
of the certified copy of the tax-paid list that the judges of election had ? 

Mr. Saunders. I do not know of any law providing for its 
preservation. 

Mr. Bennet. It just disappeared after election day. 

Mr. Saunders. What I mean to say is that there is no provision 
for keeping that list. The original record is in the clerk's office. 
A man ought to be able to go to the clerk's office and at any time 
secure a copy which would be exactly the same list as the one used 
by the judges, because there can be no proper list, save the clerk's 
copy of the treasurer's list, with such additions as have been ordered 
by court. 

Mr. Bennet. We have a provision in our law that all such lists 
of voters that are sent out to the election officers, must be returned 
to the county clerk. I thought maybe you had something of that 
kind. 

Mr. Carri^o. No, sir; they are never returned. 

Mr. Saunders. The evidence I am now reading may be objected to 
as hearsay. Contestant objects to it on that ground, but the circum- 
stances all tend to show that it correctly gives the facts. You will 
find on page 323 of the record that a man named Cornett had a con- 
versation with a man named Sells, a day or two prior to the election. 
Sells, who was a Republican, and a supporter of contestant, made this 
statement to Cornett: 

Andy Sells told me he came to town with Bob Catron and saw Basic, the treas- 
urer, put Bob Catron's name on the list; that he either put down John W. Hall's, 
and Steve Fielder's names on the list, or put some of the years for which they should 
have paid tax; at least, he fixed their names on the list, so they would be enabled to 
vote the next day. 



84 PAESONS vs. SAUNDERS. 

The only way in which these gentlemen can escape the force of 
this testimony is to say it is hearsay. It is hearsay, but it is hear- 
say under such circumstances that it compels conviction, because 
this treasurer was directly put under suspicion by the statement, 
and yet neither the treasurer, nor Mr. Sells, nor Bob Catron, went on 
the witness stand to vindicate themselves. 

Mr. Carrico. Was not Sells summoned as a witness by the con- 
testee there ? 

Mr. Saunders. And you had a chance to put him on the stand. 

Mr. Carrico. And after the attorneys consulted with him, they 
refused to put him on the stand ? 

Mr. Saunders. The lawyers on this committee can decide for 
themselves how much you can generally accomplish for your case 
by putting an adverse witness on the stand. Sells evidently did 
not know, when talking with Cornett, that Busic had done any- 
thing illegal in adding the names to the list. It seems to have been 
a common practice in that county. Sells was a strong supporter 
of contestant, and both he, Catron, and Busic, the treasurer, were 
Republicans. Sells stated that he and Bob Catron went to town 
the night before the election and that he saw the treasurer, a Repub- 
lican, add names to the list. Cornett comes on the stand and 
swears to these facts and Sells is never called to contradict him nor 
is the treasurer of the county put on the stand. Do you suppose 
an official, put under suspicion by evidence of that character, if 
conscious of rectitude, would not be eager to go on the stand and 
brand those statements as false ? 

Mr. Thurston. I would naturally conclude if you had Sells 

Mr. Saunders. You had him, and the reason we did not put him 
on was that you had him. 

Mr. Carrico. He was summoned. 

Mr. Saunders. Yes; and after counsel talked with him they found 
that they could not put him on the stand. You never bothered to 
take him up after we declined to examine him. 

Mr. Thurston. I should assume you found out he would not con- 
firm that statement. 

Mr. Saunders. And I would assume that you found out that he 
would not refute it, which is more to the point, because he was a 
witness of your faith and your supporter, or rather your client's 
supporter. This committee is composed of lawyers. They can 
determine upon the evidence whether the presumption is that Sells 
was telling the truth in the first instance, when he madp that state- 
ment, or whether any injurious conclusion is to be drawn from the 
fact that we did not put him on the stand. 

The Chairman. What difference does it make whether this fellow 
is telling the truth or not ? 

Mr. Saunders. Can it be said that it was not to contestee's 
prejudice for the treasurer to add voters to the tax list on the night 
before the election, bearing in mind the conclusive effect that is 
imputed to the list ? 

The Chairman. How do we know it was done illegally ? 

Mr. Saunders. He could not do it on the night before election, 
or at any other time after he sent the list to the clerk, except ille- 
gally, after the treasurer passed on his list to the county clerk five 
months before the election; he had no legal right thereafter to make 



PARSONS VS. SAUNDERS. 85 

any additions to the list. Any additions on his part were illegal 
additions. So much for that. These gentlemen admit in their notice 
that the treasurer can not add to the list. 

Mr. Howell. I can not understand how this list in the hands of 
the clerk could get to the hands of the treasurer. 

Mr. Saunders. The evidence shows it got there, because names 
were added in red ink the night before, and the list turned up next 
day at Comers Rock, with the red ink emendations to show for them- 
selves. Of course the treasurer's possession, for the purposes indi- 
cated, was an illegal possession. 

Mr. Nelson. Would not that imply collusion between the clerk and 
the treasurer ? 

Mr. Saunders. I think that is a fair inference. 

Mr. Carr^co. Were not those red-ink emendations all over the 
county ? 

Mr. Saunders. Yes. That is the reason I connect the other red- 
ink emendations with the treasurer and not with the clerk. 

Mr. Carrico. Suppose the court had ordered names to be placed 
on there; the list had been misprinted, and posted. How would 
he place them on there ? 

Mr. Saunders. I will tell you how I presume he would do in your 
county. He would certify the treasurer's list, and then he would 
make a separate list thereon, setting forth that the following names 
were added by virtue of order of the circuit court, or else he would 
add the names alphabetically and append a certificate stating the 
names that had been included in the court order. 

Mr. Carrico. Suppose he added the names alphabetically along 
under there in ink, would not that be as legal ? 

Mr. Saunders. I would not say that would not be legal. 

Mr. Carrico. Is there any law to the contrary ? 

Mr. Saunders. I would say that it was, but it is very unusual for 
a man who is adding to a list by virtue of a court order not to set 
forth the authority by which the names are added. 

The Chairman. I want to read just what this man says: 

A. Yes, sir; Andy Sells; Andy Sells told me he came to town with Bob 'and saw 
Mr. Busic, the treasurer, put Bob Catron's name on the list; that he either put down 
John W. Hall's and Steve Fielder's names on the list or — 

He does not know whether he put them on or not. 

Mr. Saunders. It does not make any difference as to legality 
whether he put on names, or added years to existing names, so as to 
show them fully paid up. 

The Chairman [continuing reading] : 

Or put some of the years for which they should have paid tax; at least, he fixed their 
names on the list, so they would be enabled to vote the next day. 

Mr. Saunders. So they could vote. 

The Chairman. How does he know whether he fixed them, when 
he does not know whether he put on the names or not? 

Mr. Saunders. I could tell you very readily. 

The Chairman. How ? 

Mr. Saunders. If the treasurer was working on this record and 
the witness was standing at a short distance, he might not know 
whether the treasurer was writing names in or adding years, but he 
could see that he was making additions, and all additions were 
illegal. 



86 PABSONS VS. SAUNDERS. 

The Chairman. He says he does not know whether he put the 
names on at all. 

Mr. Saunders. Well that may be so, but I do not look at it in that 
way, at least it does not seem to me that it makes sury difference 
whether he saw him adding names or years, both were illegal. 

The Chairman. That is just exactly the way I look at it, that he 
does not know whether he put the names on at all. 

Mr. Saunders. He says he fixed them so that they would be able 
to vote. At any rate Sells says he saw Busic add Catron's name, 
whatever may be thought of his statement as to the others. 

The Chairman. He says he does not know whether he put, the 
names on or not. 

Mr. Saunders. The next day the list turned up with those names 
on it. The witness says that Busic fixed them, and th^ were fijced 
all right. 

The Chairman. I am giving him the benefit of the doubt. He 
says he doesn't know. 

Mr. Nelson. In other words, the treasurer did not have any right 
to have the book at all at that time ? 

Mr. Saunders. None at all. 

Mr. Carrico. I want to ask if the record does not show that there 
were Democrats who were on the list in these red-ink emendations 
who voted ? 

Mr. Saunders. That is true; there may have been some; but does 
that affect the irregularity of the treasurer's conduct ? 

Mr. Carrico. I do not see that the treasurer had any irregularity 
in his conduct, and I do not think the record shows it. 

Mr. Saunders. There is no evidence in this case that anyone else 
made emendations. 

Mr. Carrico. I do not think there is any evidence that he added any. 

Mr. Saunders. I submit that evidence now, and later I will submit 
more evidence as to these additions. I was asked by a gentleman on 
the committee what business did Busic have with this list on the night 
before election. I answer that he had no more right to add to this 
list than you or I or any other unauthorized person. 

Mr. Carrico. I want to ask you if, at the same time, at this same 
precinct, the Democrats who were on the list in these red-ink emenda- 
tions were not allowed to vote by the two Democratic judges, and 
these same parties you speak of, the Republicans, were refused a vote ? 

Mr. Saunders. I will say this, that Mr. Cornett testified he chal- 
lenged all these red-ink emendations, and that his challenges were not 
allowed in many cases of Republicans whom he challenged. Possibly 
some Dernocrats may have voted who had been added by Busic. I 
believe the record in this case shows that one did vote; but I am 
talking now not about the irregularity of the votes, but about the 
misconduct of this treasurer in adding to the tax lists when he had no 
right to do so, either on the night before the election or at any time 
after he lodged them with the clerk. 

(Thereupon, at 12.15 o'clock p. m., a recess was taken until 8 
o'clock p. m.) 



PAESOKS VS. SAUNDERS. 87 

NIGHT SESSION. 

The committee met, pursuant to the taking of recess, at 8 o'clock 
p. m., Hon. James M. Miller in the chair. 

ARGUMENT OF HON. E. W. SAUNDERS, CONTESTEE— Continued, 

Mr. Saunders. There are one or two matters which came up this 
morning to which I wish to refer while they are fresh in the minds of 
the committee. These matters did not come up in the order in 
which I intended to present them, but now that they are before the 
committee I will try to dispose of them. 

Fiist, in respect to a suggestion made by Senator Thurston touch- 
ing the qualifications of election judges. As an offhand proposition^ 
having reference to the fact that I have never considered an election 
judge as an officer in the technical sense contemplated by the laws 
of Virginia, I replied to Senator Thurston that I did not think that 
section 32 of the constitution applied to judges of election. But on 
thinking the matter over, I am disposed to think that there is more 
in that suggestion than I was disposed to accord to it at first. Cer- 
tainly if a judge of an election is an officer, section 32 applies, and if it 
does apply, then this result follows: That while this section would 
make T. ^i. Smith, the judge at Design, ineligible, it would remove 
the ineligibility of two other judges who are attacked at Riceville 
and Baclielor's Hall. That result comes about in this way: These 
judges are attacked on the ground that they are, respectively, a con- 
stable and a justice of the peace. If the provision of the constitution 
which provides that every man who is entitletl to vote is qualified to 
hold office is regarded as fixing the qualifications of judges of elec- 
tion, then the disqualifications intentled to be imposed upon judges 
of election by section 118 of the code are unconstitutional. The 
specification of disqualifications in the constitution is an implied pro- 
hibition upon the legislature to add disqualifications of a further and 
different character. In this connection I want to cite the following 
decision of our supreme court [reading]: 

The act of February 14, 1884, prescribing that members of election boards shall be 
freeholders contravenes the Virginia constitution, Article III, section 2, which declares 
that "all persons entitled to vote shall be eligible to any office within the gift of the 
people," and is void. 

In that case certain qualifications had been added by statute, as a 
prerequisite to holding a certain office, and on application to the 
supreme court they were held to be void. Further in the case the 
court uses this language (see p. — ) : 

Now, it is a well-established rule of construction as laid down by an eminent writer, 
that when the constitution defines the qualifications for ofiice, the specification is an 
implied prohibition against legislative interference to change or add to the qualifica- 
tions thus defined. 

So that if Senator Thurston is correct — and I am free to say, after 
reflection, that I am disposed to think he is — and these judges of 
election are officers, then section 32 disqualifies T. M. Smith, if it is 
ascertained that he had not paid his taxes. But the officers at 
Bachelor's Hall and Riceville, who were disqualified by section 118 
of the code, are not disqualified, as that section is rendered uncon- 
stitutional by the provisions of the constitution, establishing the 
qualifications of officers, as found in section 32 of that instrument. 



bo PAESONS VS. SAUNDERS. 

Another word in connection witli two matters to which your atten- 
tion was called this morning. It was stated that in the county of 
Grayson the evidence showed that the treasurer had been adding to 
the tax lists of that county. I cited a portion of Cornett's evidence 
at the time. In that connection I now wish to cite another portion 
of his testimony which will conclusively show that the treasurer of 
that county did, as a matter of fact, undertake to add to those lists. 

I wish to refer the committee, in addition to what I have already 
cited, to page 322 of the record. The citations of this morning re- 
ferred to the conversation of Cornett w^ith a man named Sells. But 
the next citation will come a little closer to the treasurer. The same 
witness, Cornett, testifies to a conversation with one P. K. Catron. 

The Chairman. What page is that ? 

Mr. Saunders. Page 322 of the record. 

Under the law of Virginia, before an election, there is sent to one 
of the judges of election, by the clerk, the poll books and the certified 
tax list, for use at that election. Now, the words " certified list" are 
used in section 38 of the constitution with respect to the tax list, 
after it is sent out by the clerk for official use by the judges of election 
at a precinct. Here is the matter to which I wdsh to call your 
attention in this connection. [Reading:] 

The evening before the election I took the registration book for Comers Rock precinct 
to P. K. Catron, and left it with him, as one of the judges of election. I asked him 
if he had a- list of those who had paid their poll tax for Comers Rock precinct; he said 
it had been sent to him with the poll books, and he found, on examining it, that his 
son Bob's name had been left off, and he had sent it back to town, to have it revised or 
fixed. That he sent it by Bob. 

Bob is the same man whose vote was subsequently contested, and 
here we find the judge of election stating to this witness, Cornett, that 
he had sent the tax list to Independence by his son Bob, to have it 
revised, or fixed. Bob Catron was the man who went with Sells to 
the town of Independence. 

After this man Cornett testified to the foregoing conversation, 
P. K. Catron went on the stand, and did not undertake to deny that 
it had taken place, as asserted b}^ the witness. 

So I think that this evidence, in connection with the other citation, 
establishes the fact that the treasurer of that county was adding to 
the tax lists on the night before the election. 

I stated to-day that so far as contestant was concerned he had 
asserted in his notice and his brief that no name could be added to the 
list save by order of the court; that neither the treasurer nor an3^one 
else had the right to add to this list, after it passed out of the treas- 
urer's hands, save the clerk, pursuant to an order of the court. 

I Vv^ant to call attention, in connection with that statement, to the 
following extract from the brief. On page 26 of this document you 
will find the following : 

No election board can disregard this tax list. No matter how incorrect or incom- 
plete it may be, no additional names can be placed upon it except by an order of the 
circuit court or a judge thereof. 

As I said, I accept that as a sound proposition of law. 

Mr. Carrico. Suppose the circuit court in its order had ordered 
that Bob Catron's name go on the list and through inadvertence the 
clerk had not placed it on there when he had certified it out to the 
judges of election; would it have been proper, the day before election, 
for him to have placed it there ? 



PARSONS VS. SAUNDERS. 89 

Mr. Saunders. I think so; yes. He could have placed it on there 
at any time. But tliere is not a line of evidence here to show that 
the list was sent to the clerk. It was sent to the treasurer, not the 
clerk. If you can connect the clerk with these adflitions, I haven't 
a word to say in tlie way of criticism or objection. On pages 310, 
311, and 312 of the record will be found the testimony of Mack 
Pugh. This testimony refers to the red -ink annotations. Mack 
Pugh swore that he had not paid his taxes for 1905, 1906, and 1907. 
He was on the list all right. He voted for the contestant. 

Then there is Hoffman, at page 280 of the record 

Mr. Carrico. Didn't he also say that a Democrat had paid them 
for him ? 

Mr. Saunders. I don't find anything of that kind. You tried on 
cross-examination to get him to say something like that, but you 
could not get him to do it. He didn't know who paid them. But 
if a Democrat paid them, a Democrat didn't get his vote. I will 
read from his testimony. [Reading from p. 310 of the record:] 

Q. Please state whether you paid your poll tax for the years 1905, 1906, and 1907, as 
required by law. 

A. No, sir. 

Q. I here hand you what purports to be a list of voters in Grayson County, who had 
paid their poll tax for the years named, which said list is sworn to by D. J. Busic, 
treasurer of Grayson County. Now please take this list and look on page 6 of the Wilson 
district and see if you do not find the name of Mack Pugh written in red ink, and after 
the name the figures 1905, 1906, and 1907, showing that you had paid your poll tax 
for those years. 

A. Yes, sir; it looks to be there. 

And later he swears he voted for contestant. Having proved that 
the treasurer added to the Comers Rock list with red ink, and having 
proved further (see Analysis, pp. 24-25) that other additions in red 
mk were made to other lists at the different precincts, it is submitted 
that the treasurer is connected with all the red-ink emendations, and 
the whole list for this county, which went largely Republican, is put 
under suspicion. In addition the record shows that various people 
went to Busic after May 1, 1908, to have their names entered on the 
list. 

So much for that. I pass on now to what I am sure will be far 
more interesting matter to the connnittee, and certainly to me, than 
the matters I have been dealing with up to the present time. I de- 
sire to take up the propositions of law that were presented by Mr. 
Carrico and Mr. Montague on yesterday, and to take them up in the 
reverse order. First, the arguments submitted by Mr. Montague, so 
far as they relate to the constitutionality of the Virginia act of appor- 
tionment. I shall undertake, to the best of my ability, to demonstrate 
the constitutionality of that act, whether with reference to the Con- 
stitution of the United States or to the constitution of Virginia. 

Mr. Montague saitl that this was purely a federal proposition. In 
that statement he was obviously in error. When he vetoed the bill 
to which he referred in his argument he did not base his veto on the 
ground that the question presented was purely a federal proposition, 
because he related his message partly to the Constitution of the 
United States and parth' to the constitution of Viruinia. (See record, 

With reference both to the constitution of Virginia and to the acts 
which derive their authority from the Constitution of the United 



90 PAESONS VS. SAUNDERS. 

States, I shall undertake, as I say, to show that the Virginia statute 
is constitutionaL 

Mr. Montague walked very carefully when he discussed the consti- 
tutionality of the act of 1908, with reference to the constitution of 
Virginia. He denied one thing. Tie denied that we could derive the 
right of the vState to make apportionments from section 4 of the Con- 
stitution, which provides that the times, places, and manner of hold- 
ing elections for vSenators and Representatives shall be prescribed in 
each State by the legislature thereof, subject to the controlling power 
of Congress acting under the Constitution. I might well ask Gov- 
ernor Montague, in that connection, if the right of the legislature to 
district a State does not proceed from that clause of the Constitution, 
then from what clause does it proceed ? 

That question was certainly not answered by him on yesterday. 
According to the uniform current of authority, section 4 is the one 
which affords the States the right to lay themselves off into districts. 
If Congress possesses a paramount authority in this respect, and the 
existence of this power has been often denied, it must be derived 
from the same section. This section is as follows : 

The times, places, and manner of holding elections for Senators and Representatives 
shall be prescribed in each State by the legislature thereof; but the Congress may at 
any time, by law, make or alter such regulations, except as to the places of choosing 
Senators. 

Governor Montague made light of the proposition that this section 
furnished the authority to the States to enact their statutes of ap- 
portionment. If they do not derive this power from this section, 
is it an inherent and fundamental possession of their own ? If they 
derive it from the Constitution, I submit that they must derive it 
from that clause of the Constitution. If they derive it from that 
clause of the Constitution, then the power is an absolute possession 
of the States until that power is, in some way, circumscribed by the 
authority of Congress. 

To what extent has Congress undertaken to circumscribe the power 
of the States with relation to laying off their territory into districts, in 
respect to the details of contiguity and compactness ? I know of no 
statutes to that end, no restriction in that respect, save the act of 
apportionment of 1901 . Governor Montague did not seem disposed to 
attach much authority to this act, but if this statute does not pre- 
scribe a rule for the States in the matter of apportionments, then 
Congress has not sought to exercise its supposed authority in this 
respect. 

The attention of the committee is directed to this act, because I 
wish to consider this matter primarily with reference to the power of 
Congress to interfere with the States in matters of apportionment. 

The act referred to is as follows: 

In each State, under this apportionment, the number to which such State may be 
entitled in the Fifty-eighth and each subsequent Congress shall be elected by districts 
composed of contiguous and compact territory, containing, as nearly as practicable, 
an equal number of inhabitants. 

That, as I said, is the only act of Congress of which I have any 
cognizance, or to which anybody has undertaken to refer, which 
undertakes to say to the States how they shall lay off their districts in 
the particulars mentioned, namely, of contiguity and of compact- 



PARSONS VS. SAUNDEES. 91 

ness. Are there any authorities on this proposition ? I call upon 
these gentlemen in this connection to point them out. 

In this connection, Governor Montague failed to advert to an 
authority immediately in point, an authority which is precisely on 
all fours with this case, an autliority which, until it is set aside, is 
absolutely conclusive and tlecisive of the case in hand. Its findings 
are, first, that the Congress lias no authority over the States in the 
matter of a])portionments, and, second, that if tiie Congress possessed 
this power, it would be most unwise and inexpedient to undertake to 
exercise it. The case to which I refer is that of Davidson v. Gilbert, 
which grew out of the action of the Kentucky legislature in taking a 
county from the Eighth Kentucky District and adding it to another. 
By reference to that case it will be seen that the State of Kentucky 
took this action by virtue of its legislative authority. It took a 
Republican count}^ from one district and put it into another district. 
And when it took that Republican county from the one district and 
transferred it to the other district, it made the first district Demo- 
cratic. Before that time the district was Republican. As a result 
of the change it became Democratic. Of course that was an outrage. 
I believe Mr. Speaker Reed used to say each time the Committee on 
Rules reported a special rule, "Prepare for another outrage." The 
action or the legislature of Kentucky was another outrage. Now, 
what happened in that district when a Democrat was elected in 
consequence of the change ? The Republican who was defeated 
brought his case to Congress, and set up the claim that the State 
of Kentucky, in respect to this act, had gerrymandered his district, 
and that this action was wrong; that it had been done for political 
purposes; and that no sufficient reason could be afforded why this 
change should have been made, and the pivotal county transferred 
from one tlistrict to another; in other words, that the action taken 
was wrong per se — morally wrong, as well as in excess of the con- 
stitutional authority vested in the State of Kentucky. Well, that 
case was sent to a committee. I think it went before this very 
committee; possibly the chairman of this committee was a member 
of the committee at that time. 

The Chairman. I think that was Mr. Mann's committee. 

Mr. Saunders. Well, Mr. Taylor was a member of the committee. 
This gentleman seems to have been a man of remarkable ability. 
I have examined his arguments in connection with various matters 
before the House; I have followed the course of his arguments in 
connection with the Brigham Roberts case, and later in connection 
with the Smoot case, in the Senate of the United States ; and Mnthout 
regard to the universal opinion which is entertained of his ability, 
those deliverances on his part would be sufiicient to establish him 
as a sound constitutional lawyer and a man of great learning. 
He made the report in the case I have referred to, and I will not 
undertake to present its findings in my own language. The most 
effective way of presenting this report to the committee will be to 
read such portions of it as touch on the case in hand. 

This case of Davidson v. Gilbert will be found in Hinds Pre- 
cedents, volume 1, on pages 180-181. Now for the citations: 
The third objection was that this act contravened an act of Con- 
gress. The committee considered at length in the light of Article I, 
section 4, of the Constitution, the suggestion that the Kentucky act 



92 PARSONS VS. SAUNDERS. 

contravened the federal act of apportionment. Section 4, of the 
Constitution, is as follows: 

The time, places, and manner of holding election for Senators and Representatives 
shall be prescribed in each State by the legislature thereof; but the Congress may, 
at any time, by law make or alter such regulations, except as to the places of choosing 
Senators. 

The report proceeds to say that this was the first time that Con- 
gress had been asked to undo the work of a State which had divided 
itself into a proper number of congressional districts. Reviewing 
the history of apportionment the report adds: 

The Chairman. Did he say that was the first time? 

Air. Saunders. That is what Hinds says, quoting from the report. 

Mr. Thurston. Tayler said that in his report. 

Mr. Saunders (reading) : 

For nearly forty years the States proceeded to elect representatives, some at large 
and some by districts. In 1840 the policy of electing by districts was generally 
approved and adopted, but several of the States continued to elect their representa- 
tives by the vote of the entire State. The first legislation on the subject going beyond 
the mere apportionment of the States was enacted in 1842. -In the apportionment 
act of that year an amendment was added in the House providing for the division of 
the several States into districts, composed of contiguous territory, equal in number 
to the number of representatives to which the State was entitled, and each district 
to elect one representative and no more. 

The amendment provoked considerable discussion, but was finally adopted. 

Then came the apportionment act, and there was finally added to it 
the provision requiring an equal number of inhabitants in the dis- 
tricts, so far as practicable. On this apportionment act a part of the 
contestant's case is based, as set out both in his notice and in the 
brief filed on his behalf. In both of these papers it is asserted that 
when the State of Virginia created the fifth district, under the act of 
1908, its action was unconstitutional, in that it failed to conform to 
the federal statute in respect to its requirements as to compactness 
and population. So much for the claims of contestant in the present 
case. Now for the findings of the committee. 

I want to say another thing in this connection, and that is that it 
has never been authoritatively settled that Congress possesses the 
author! t}^ to require the States to elect by districts. Of course I 
won't go into that to-night. The report in Davidson v. Gilbert 
proceeds as follows: 

So far as legislative declaration is concerned, it is apparent that Congress has ex- 
pressed an opinion in favor of its power to require that -the States shall be divided 
into districts composed of contiguous territory and of as nearly equal population as 
practicable. Whether it has a constitutional right to enact legislation is a very serious 
question, and the uniform current of opinion is that if it has such power under the 
Constitution, that power ought never to be exercised to the extent of declaring a 
right to divide the State into congressional districts or to supervise or change any 
districting which the States may provide. 

The best opinion seems to be that the Constitution does not mean that under all 
circumstances Congress shall have power to divide the States into districts, but only 
that the constitutional provision was inserted for the purpose of giving Congress the 
power to provide the means, whereby a State should be represented in Congress when 
the State itself, for some reason, had failed or refused to make such provision itself. 

One of the grounds of the pending contest is that the Virginia 
statute of 1908 transferring Floyd from the fifth to the sixth district is 
in contravention of the alleged authority of the federal act of appor- 
tionment cited supra. In this connection the ultimate finding of 



PARSONS VS. SAUNDERS. 93 

the report in Davidson v. Gilbert will be of interest to the committee. 
This finding is in tlie following terms: 

Your committee are therefore of opinion that a proper construction of the Consti- 
tution does not warrant the conclusion that by that instrument Congress is clothed 
with power to determine the boundaries of congressional districts or to revise the 
acts of a state legislature in fixing such boundaries, and your committee is further 
of opinion that even if such power is to be implied from the language of the Consti- 
tution, it would be in the last degree unwise and intolerable that it should exercise it. 

To do so would be to put in the hands of Congress the ability 
to disfranchise in effect a large body of electors. It would give 
Congress the power to apply to all the States, in favor of one party, 
a general system of gerrymandering. It is true that the same method 
is resorted to in a large degree by the several States, but the divi- 
sion of political power is so general and diverse that notwithstand- 
ing the inherent vice of the system of gerrymandering some kind 
of equality of distribution results. 

This case is authority for two propositions: First, that Congress 
has no constitutional power to determine the boundaries of congres- 
sional districts, or to revise the acts of a state legislature in fixing such 
boundaries; second, that if it possessed this authority its exercise 
would be most intolerable and unwise. 

Mr. Nelson. Might I interrupt you right there? 

Mr. Saunders. Certainly. 

Mr. Nelson. I have read that case, and I would like to have you 
suggest to me, if you have given the thing any thought, how that 
could be done without a law being made by Congress ? 

Mr. Saunders. I do not see how it can be done. 

Mr. Nelson. In that case, it would have to be applied to all the 
States in the Union ? 

Mr. Saunders. Certainly. This suggestion shows what a Pan- 
dora's box is opened when you undertake to do what this contestant 
asks you to do in order that he may acquire my seat. 

^'Ir. Nelson. Follow that up, please. Say we in this case attempt 
to apportion 

Mr. Saunders. You are asked to set aside a valid act of appor- 
tionment in the State of Virginia. 

Mr. Nelson. But are we attempting to legislate at all? 

Mr. Saunders. Well, of course you are not undertaking to pre- 
scribe a specific district, but you are undertaking to set aside a valid 
act of the legislature which has established our districts. To do this 
successively would be to legislate, in substance. The analogy is the 
action of the courts in those States where they undertake to say that 
some specific arrangement of legislative districts is unconstitutional. 
In those States the courts can avoid successive acts of apportion- 
ment until finally one is presented which they are willing to approve. 
This, in substance, is apportionment making by the courts. 

Mr. Nelson. If it does not interrupt you, I would like to ask 
another question ? 

Mr. Saunders. It does not interrupt me at all. 

Mr. Nelson. I want to ask you for light on these points that are 
troublesome. In the exercise of our jurisdiction here, what is to pre- 
vent our declaring that law valid or invalid on the provision which 
gives us a right to look into the election returns of Members of Con- 
gress. 



94 PARSONS VS. SAUNDERS. 

Mr. Saunders. Well, the election and return of a Member is valid if 
it conforms to existing law. If it is alleged to be invalid, that in- 
validity must be referred to some proper ground. The election of a 
Member can not be declared invalid as a mere exercise of arbitrary 
power. Now, the report in the case supra holds that the act of ap- 
portionment of 1901 does not furnish Congress with the power to 
interfere with the States in the matter of laying off districts, and holds 
further that, even if it did, the power ought not to be exercised. If 
this House can say: ''This arrangement does not suit me; it does not 
conform to my notion of what a proper district ought to be, and I will 
declare the same invalid and unconstitutional," then what will 
happen ? Suppose the State makes another arrangement and another 
election is held, but another contest is instituted presenting the same 
question. The House may again declare its authority, and pronounce 
the second act unconstitutional. Thus, by virtue of declaring suc- 
cessive acts of apportionment invalid, the House would, in substance, 
compel the rearrangement of ever}^ district in that or any other 
State, in conformity with its own views. This would be for the House 
alone to practice a general system of gerrymandering. 

You are asked to do in this case just what was asked to be done 
in the case of Davidson v. Gilbert. It was claimed in that case that 
a county was improperly transferred from one district to another; 
that such a wrong ought not to be allowed, and that the Repub- 
lican contestant of Gilbert's seat ought to be seated as a sort of 
punishment of the State of Kentucky for its improper practices. 

Mr. Thurston. If I do not interfere with you 

Mr. Saunders. Not at all. 

Mr. Thurston. Referring to this particular case, not what Mr. 
Tayler says there, but take this case before us. If this committee 
should declare your act changing the boundaries of the fifth and sixth 
districts unconstitutional, Congress would not thereby be defining 
any districts from which Congressmen should be elected, but would 
throw the elections back into the districts fixed by your own State at 
a time and in a way that was clearly legal. 

Mr. Saunders. That raises the question whether the other act was 
in anywise more legal than the act of 1908. Why was the "time" 
and "the way" of the act of 1906 more legal than the "time" and 
"the way" of the act of 1908? 

Mr. Thurston. That would not take the power away from the 
States. 

Mr. Saunders. Let us see. Looking to the map of Virginia, you 
will see that there are other districts in the State that lack compact- 
ness even more than the fifth district. The sixth is more of a shoe- 
string district than the fifth. The gentleman who ran against Mr. 
Glass could therefore claim that the act that fixed the sixth district 
was invalid, and instituting a contest, could ask Congress to declare 
that the apportionment of 1906, so far as the sixth district was created 
thereby, was null and void. This course could be taken consenta- 
neously or consecutively with reference to all the districts of the State. 
This would be, as I have said, to vest in the House an absolute control 
over the States in respect to the arrangement of their districts. This 
contestant asks this committee to recommend a policy which was dep- 
recated by the report in Davidson v. Gilbert. 

Mr. Nelson. Let me press that a little further, if I may. 



PARSONS VS. SAUNDERS. 95 

Mr. Saunders. Certainly. 

Mr. Nelson. Supposing that that is carried on, supposing that 
this being done in Virginia and having been done in the Gilbert case, 
and we decided as they did in the Gilbert case, what is to hinder them 
shifting tlie territory every two years ? 

Mr. Saunders. Nothing in the world. Should you decide that the 
House has the powder to avoid the apportionment acts of the States, 
what would hinder it from exercising this power whenever it met, 
with reference to the acts of any and all of the States wdiose appor- 
tionments did not meet its approbation ? A question of large policy 
is involved in contestant's application in this case. 

Mr. Nelson. But you take away that right. 

Mr. Saunders. But if you claim that right (this, of course, is a 
sort of counter question), then I ask you, what would hinder the 
House, every time that it meets, from drawang into issue ever}^ dis- 
trict in the United States ? 

Mr. Nelson. It is the difficulty with it that you object to. 

Mr. Saunders. Yes; there is a practical difficulty that emphasizes 
the unwisdom of the suggested policy. 

Mr. Nelson. You do not deny the constitutional right. 

Mr. Saunders. Well, on that point I think I might rest my case 
on the report of Mr. Tayler in Davidson v. Gilbert. 

Mr. Nelson. I w^anted to know on which you relied, the constitu- 
tional right or the policy ? 

Mr. Saunders. On both. But I have not undertaken to argue 
that Congress has no right to establish or regulate the districts in the 
States. In that respect as well as in the other I stand on the findings 
of the report. Until the findings of that report are overruled, I think 
they wdll command as much respect, and for that matter a great deal 
more, than any argument I could make on the questions which it 
discusses. Of course, I have investigated the question of constitution- 
ality, and could argue it, but I think that, until this committee reaches 
the point that it is disposed to say that, as a matter of wdse policy, 
this House ought to undertake this enterprise of upsetting con- 
gressional apportionments, it is not necessaiy for me to do more than 
stand firmly on this well-reasoned precedent. 

Mr. Thurston. If I do not interrupt you 

Mr. Saunders. Not at all. 

Mr. Thurston. You understand, of course, that that act of the 
Kentucky legislature was the first action taken in the way of changing 
the congressional districts. 

Mr. Saunders. Yes. 

Mr. Thurston. After a federal census ? 

Mr. Saunders. Certainly. 

Mr. Thurston. It w^as the first act. They had not redistricted 
under the census until they passed that act. 

Mr. Saunders. I understand that. 

Mr. Thurston. Then there is one other thing here you do not find 
in this book; but you will find it in the full report of Mr. Tayler. He 
lays great stress in urging Congress not to act in this case on the fact 
that both political parties in the two districts afl^ected had accepted 
the change, had held their nominating conventions with reference 
to the new districts, and had nominated as of the new districts, and 
had proceeded and carried out their elections in the new districts. 



96 PARSONS vs. SAUNDERS. 

Mr. Saunders. Well, with respect to the first suggestion, that is 
proper to be related to and discussed under another head, namely, 
the exhaustion of power by one act of apportionment. I will discuss 
that later. 

Mr. Thurston. That is right. 

Mr. Saunders. As to your second proposition I think the answer 
I have given in that connection in my brief is as good an answer as I 
can give; that if this question is a question of constitutionality, no act 
of a political organization can make that valid, which was once void. 
If the Kentucky legislature did not have the power to make the 
transfer then no subsequent action of a political organization could 
make valid that which was void in its inception. 

Now, with respect to the question of policy, that committee did not 
say in its report that quo ad that particular district; it advised the 
House not to interfere with the exercise by the State of the power 
of apportionment, but it recommended that it would be an unwise 
national policy for Congress to embark upon the practice of inter- 
ference with the apportionments of the States. It did not limit its 
recommendations to the Kentucky case, or say, as the courts some- 
times say: "We will decide this case this way, but our action in this 
case is not to be taken as a precedent." 

Mr. KoRBLY. Does Mr. Thurston want to be understood as saving 
that the fact that Kentucky exercised the power to district the first 
time, and violated the rule for compactness, that it might do that 
because it was the first exercise of the power of districting ? 

Mr. Thurston. No; I wanted to call attention to that because of 
our further legal contention that the legislature can only act once 
under each apportionment. As Judge Saunders says, that comes 
under the head of another discussion. 

Mr. Saunders (reading from Hinds) : 

It is true that the same method is, to a large degree, resorted to by the several States, 
but the division of political power is so general and diverse that, notwithstanding the 
inherent vice of the system of gerrymandering, some kind of equality of distribution 
results. 

In other words, there is a sort of substantial equality worked out 
under the present system without any interference by Congress with 
the rights of the States. 

Now, a word further in this connection. Governor Montague re- 
ferred to political precedents, and heaped contempt on precedents of 
this character. In respect to the case of Perkins v. Morrison, he 
criticised that as a political precedent. By the logic of this argument 
the decision of the committee in this case would be a political prece- 
dent and not entitled to be regarded as authority. 

I want to say, Mr. Chairman, that that sort of argument proves too 
much. If we can not believe that the judgment of the committees of 
a preceding Congress, and of the Members who composed it, acting 
under their oaths as judicial bodies — for the statute under which this 
action is taken — makes this committee a judicial body is entitled to 
respect, how can we argue that the findings of committees of a subse- 
quent Congress are entitled to any greater respect ? 

The committees of other days were composed of men like ourselves, 
elected likewise from congressional districts, and bringing a sense of 
duty to their work, just as we claim for ourselves that we bring to 
the discharge of our duties a proper sense of patriotic responsibility. 



PABSONS VS. SAUNDERS. 97 

Wo are not to suppose that our forefathers were less mindful of 
their duty, or less disposed to do justice, than the men of to-day. 
^ The argument of Governor Montague, which w^ould comprehend in 
one sweeping condemnation the action of all political bodies, brand- 
ing them one and all as partisan, was a hasty and ill-advised utterance. 
I am reminded of the saying im])uted to one of the characters of the 
Bible: "T said in my haste all men were liars." Of course he had to 
moilify his maxini, for in its original form the apothegm included its 
maker. If the action of other committees is not to be followed 
because they constitute })oIitical precedents, to what class will the 
action of this committee belong? It, too, by anticipation, is pro- 
nounced to be ]3artisan, by the force of the governor's argument. 

Governor Montague's criticism of the precedents afforded by the 
action of the House in the past was rather unusual. As a rule we 
refer to the action of our forefathers as embodying the height of 
wisdom. Our patriotic forefathers are always brought into the lime- 
light when it is desired to emj)hasize, as it were, the lack of patriotism 
of the modern-day politicians. I believe those men did their duty, 
and I believe this committee will do its duty, and. in doing its duty 
this committee will give to the precedents of this House that w^eight 
to wdiich they are entitled, as thoughtful findings of men who were 
seeking to do their duty. 

So much for this phase of the case. As I have said, until the con- 
testant can overbear the report in Davidson v. Gilbert, he is shut off 
from asserting the power ol Congress to interfere with the States in 
the matter of apportionments. It is said that the report was never 
acted on in the House. I take it that this fact increases its authority. 
The contestant was impressed with its authority, or else was unable 
to bring it before the House, which doubtless recognized that a 
decision in the negative of contestant's claim was a foregone conclu- 
sion. There it stands, emphatic, direct, cogent, logical, and com- 
prehensive. It fits this case like a glove, and so long as it stands 
unreversed, so long as this committee is unwilling to recommend to 
the House of Representatives the twofold proposition, first, that the 
House possesses the constitutional right to interfere with the States 
in the matter of apportionments, and, second, possessing this right, 
that it would be a wuse policy to embark upon its exercise, so long 
will this case oppose an effectual barrier to the effort of contestant to 
deprive me of my seat in the Congress of the United States. 

The next proposition that I wish to discuss is that this apportion- 
ment is unconstitutional from the view point of the constitution of 
Virginia. There are a number of cases relating to the authority of 
the courts to overturn apportionments on the ground that they are 
contrary to the organic law. Some courts maintain the authority, 
others deny it, when the legislature exercises any measure of discre- 
tion. I will not undertake to reconcile the views of the courts which 
have rendered these decisions. They are hopelessly irreconcilable. 
They are no more to be reconciled than Webster and Hayne on the 
Constitution could be reconciled. They represent opposing views of 
a fundamental principle, or rather present fundamental principles 
which are hopelessly and irreconcilably opposed. One line of deci- 
sions is loath to interfere with the exercise of legislative discretion as 
38069—10 7 



98 PARSONS VS. SAUNDERS. 

applied to political apportionments. The other line feels no indispo- 
sition on that score, but is ready to overturn any consecutive number 
of legislative apportionments. 

There are four courts in the United States of the highest authority*, 
which have declared unequivocally that the legislatures of the States, 
acting under constitutions like the constitution of Virginia, are vested 
with a political discretion in the matter of apportionments with which 
they will not interfere unless the act complained of is of such an 
extreme character of injustice that it may be fairly described not as 
unwise or unfair or indiscreet or unjust, but as a nullity, as not being 
an apportionment at all. There is the fundamental line of cleavage 
between the apportionment cases. 

The courts of the State of New York, of the State of Illinois, of the 
State of Ohio, and of the State of Virginia maintain the proposition 
that the laying off of a State into districts is a matter of political dis- 
cretion that should be remitted to the legislatures subject to inter- 
ference by the courts in certain indicated and extreme cases; that it 
is not a judicial function to undertake to discharge this particular line 
of public duty. And then there are the cases from Michigan, Wis- 
consin, and Indiana which maintain the other view, that the courts 
can. constrain the legislative bodies to walk in the straight and narrow 
way which they prescribe. These cases are not to be reconciled or 
harmonized. There is no one fundamental coherent proposition for 
which all the cases stand, unless it is that the courts possess juris- 
diction. As soon as they undertake to ascertain how that jurisdiction 
shall be exercised the divergence begins. 

What does the supreme court of New York say in this connection ? 
That is a great court. I don't know of any court whose decisions 
stand higher with the bar than the court of appeals of New York. 
The opinion in Carter v. Rice is so voluminous that I will not under- 
take to read all of it, but I will call your attention to a few pertinent 
paragraphs. 

The power to readjust the political divisions of a sovereignty, with reference to 
the representation of the inhabitants in the legislature rests, of course, in the first 
instance, in the people. The essential nature of the power is political, as distin- 
guished from the legislative or judicial power. The power to review in the courts 
exists, when the people have so limited the exercise of the power to readjust the 
political divisions of the State, that the power thus limited has become, in the hands 
of the persons intrusted with it, one of ministerial nature only. (Carter v. Rice, 
135 N. Y., 499-500.) 

And there you approach the dividing line which separates these 
apportionment cases, some on the one side and some on the other. 
The court continues: 

The legislature, in this case, is intrusted with some discretion in the matter of 
apportionment. Is the court to interfere with such power whenever it thinks that 
the legislature might, in its exercise, possibly have come nearer to an equality, after 
complying with the special conditions mentioned in the Constitution? This would 
be to assert a power in the courts to supervise the use of the discretion given to the 
legislature, if such discretion were exercised in the slightest degree, after the con- 
stitutional mandate in regard to the county lines and county members, had been 
complied with. We do not believe in the necessity or propriety of any such rule. 
On the contrary, we think the courts have no power in such cases to review the exer- 
cise of discretion intrusted to the legislature by the constitution, unless it is plainly 
and grossly abused. The expression, "as nearly as may be," as used in the consti- 
tution with reference to this subject, do'es not mean as nearly as a mathematical 
process can be followed. It is a direction addressed to the legislature, in the way of 
a general statement of principles, upon which the apportionment shall, in good faith, 
be made. (Id., 501.) 



PAKSONS VS. SAUNDERS. 99 

Of course cases can be imagined in which the action of the legis- 
hiture would be so gross a violation of the constitution that it would 
be easily seen that the organic law had been entirely lost sight of. 
This would be a plain and gross violation, in the sense contemplated 
by this, and the other courts maintaining this principle. 

Mr. Nelson. Let me interrupt you there. What, in your judg- 
ment, would be such an apportionment, where the constitutional 
provisions had been lost sight of 'i Can you give me a specific 
dlustration ^ 

Mr. Saunders. Yes; but in doing that, Mr. Nelson, I will answer 
you in the language of these courts, that it would have to be such a 
departure from the constitution that the courts could not merely 
say: "This is an unwise apportionment; this is an unfair apportion- 
ment," but would flatly atiirm this is no apportionment at all. 

Mr. Nelson. Well, what do you mean by that ? 

Mr. Saunders. That is what the courts say. 

Mr. Nelson. Language has a meaning. What would in Virginia 
be a "no apportionment?" 

Mr. Saunders. I take it that if the State of Virginia undertook to 
group all of the counties in such a manner that nine congressional 
•districts would contain one county each, while the remaining counties 
were included in the tenth district, such an arrangement would be a 
gross violation of our constitution in the contemplation of Carter v. 
Rice, supra. Of course, there might be other arrangements not so 
bad as the one suggested that would still be gross violations of the 
constitution, as these terms are used by the courts. In such cases 
the courts would hold that there had been no apportionments at all. 
These suggestions are illustrative of what the courts mean by the 
terms used. But it is clear that the court which decided Carter and 
Rice, under a constitution closely resembling the Virginia constitu- 
tion, would not hold the present act of apportionment in our State 
to be unconstitutional, for the simple reason that the recitals of 
Carter v. Rice show that the New York apportionment then under 
consideration was a far more outrageous gerrymander, if you choose 
so to describe it, than the Virginia act of 1908, which is now drawn 
in question. 

The facts in Carter v. Rice give a line on what the court in that 
case thought was an apportionment that may have been unjust, in 
a moral sense, but was not unconstitutional. 

Mr. Thurston. Have you found any case where the courts have 
denied the power of the judiciary to set aside an act of the legislature 
in the matter of an apportionment ? 

Mr. Saunders. No; they all maintain the power of the courts to 
interfere, but differ radically as to when that power ought to be 
exercised. 

Mr. Thurston. They all concede that the power does exist and 
that it depends on whether or not there has been a gross, apparent, 
flagrant violation of the constitutional provision. 

Mr. Saunders. Yes; but the cases follow that up by showing what 
they mean by the words gross, flagrant, and palpable; they mean a 
redistricting; that is no redistricting at all; that is a nullity. They 
all use that illustration. 

Mr. Nelson. I have tried to follow that up in my mind and I get. 
nothing by that cleavage, because if there is no apportionment at 



100 PARSONS VS. SAUNDEES. 

all — for instance, in your judgment, if they let it stand under the old, 
there would be the old apportionment. 

Mr. Saunders. The illustration I gave furnishes, I think, a case 
in which it might fairly be said that there was no apportionment at all. 

Mr. Nelson. You gave me an idea of what you think it means. 

Mr. Saunders. Yes; I may add that it might not have to be so bad 
as that in order for the courts to exercise their powers of annulment 
in States like New York, Illinois, Ohio, and Virginia. The court of 
the latter State has expressed this principle of noninterference in the 
very largest terms. Still, I do not believe, I am frank to say, that 
when you work out the principle asserted by the Virginia case there 
is any difference between the position maintained by our court and 
that held by the Illinois case, the New York case, and the Ohio case. 
Our court has simply expressed its indisposition to interfere with 
apportionment acts in more sweeping and universal terms by declar- 
ing that the "matter of apportionment is a matter of political dis- 
cretion with which it has no concern." 

That is the statement of a Virginia court, and we are considering 
in one phase of this case the constitution of Virginia as the same is 
expounded by the supreme court of that State. Hence for the just 
decision of this contest, the case of Wise v. Bigger (79 Va.) is the" 
strongest case that could be brought before this committee. 

The Chairman. Is that New York case the case of Carter -i^ Rice? 

Mr. Saunders. Yes. 

The Chairman. What do you say as to the later decision in New 
York? 

Mr. Saunders. That decision is the strongest confirmation of the 
proposition affirmed in Carter v. Rice that you could imagine, because 
so far from the court saying that Carter v. Rice was improperly 
decided, it expressly says that it recognizes the force and binding 
authority of Carter v. Rice, as conditions then existed. The later 
case was decided upon the terms of a constitution subsequent to 
Carter v. Rice. 

Now, I wish to say another thing in this connection. Our friend, 
Governor Montague, said that this was a question of power, and not 
a question of justice, in the sense of undertaking to do justice without 
regard to law; that it was a question of power under the law. I 
accept that; I contend for that principle. It is a question of power 
under the law. And while I do not mean to be understood as saying 
that I am not prepared in any court of morals, or high equity, to 
justify the present apportionment in Virginia, if I could present to 
this committee the evidence that was before our legislature, and all 
the considerations that animated that body, I consider that we are 
precluded from entering upon that inquiry. You are sitting as 
a court, and as a court, you presume that the laws of Virginia 
were passed under proper motives and that the legislature had in 
mind considerations which are not now, and can not be, before this 
committee. 

The legislative discretion is a wide one. They may consider things such as com- 
munity of interest, facility of communication, the general topography, the rapidity 
with which population is increasing, and many other things with which the court has 
nothing to do, and which it can not know. This court can not take evidence as to these 
outside considerations, but I have no doubt of the power of the legislature to do so in 
the exercise of its discretion. (83 Wis., p. 169.) 



PARSONS VS. SAUNDERS. 101 

Mr. Nelson. You are familiar with the further decdsions of the 
court which say: "When they confine themselves within their 
constitutional rights V 

Mr. Saunders. Yes. 

Mr. Nelson. And if they go beyond that, we have a right to as- 
certain their motives ? 

Mr. Saunders, ^'es, if they pass that line. Now, with "respect to 
whether our legislature has confined itself to the exercise of its consti- 
tutional rights, what more potent evidence could be afforded that it was 
within its rights than a decision of the supreme court of that State affirm- 
ing that in laying off congressional districts the legislature was exercis- 
ing a political discretion with which its court was not concerned. How 
would this tribunal be able to hold that the Virginia legislature made an 
unconstitutional enactment when the highest court of that State had 
declared that in making apportionments it was discliarging a consti- 
tutional function which was its peculiar attribute, and one with 
which the court had no concern ? Still, in order to seat the contestant 
and oust me, you are asked to override that interpretation of the or- 
ganic law of Virginia which has been placed upon it by our highest 
court. That is the proposition in concrete form. 

The court said in People ?". Thompson (155 111., 461) that — 

If a statute is within the authority of the legishiture, as afforded by the constitution, 
it is valid, though resulting in inequalities and injustice. 

There are man)- constitutional duties imposed upon legislatures which can not be 
enforced by the courts, and the manner of compliance with which must be left to the 
sole and final determination of the department upon which the duty is imposed. (Id., 
p. 474.) 

Courts ought not to pass the boundary line inclosing the discretionary power of the 
legislature and invade that discretion. (Id., p. 476.) 

In this case it was a question for the final determination of the legislature as to what 
approximation should or could be made towards perfect compactness of territory and 
equality of population, and this, too, though treating the requirements of the consti- 
tution as mandatory. (Id., p. 477.) 

The Chairman. What are you reading from 'i 

Mr. Saunders. This is the case of People v. Thompson (155 111., 
461). Nothing can be stronger as a statement of principle than the 
extracts I am reading. (Reading further:) 

When the general assembly in the discharge of this duty has not transcended this 
power, though it may have performed its duty verv imperfectly, its act is valid. 
(Id. p. 477.) 

And then the case proceeds to discuss the cjuestions of compactness 
and population, pursuant to the constitution of Illinois. 

I wish to introduce further in this connection a citation from a 
decision of the supreme court of the State of Ohio. I have the case at 
hand, which is in 48 Ohio. The principle announced in that case 
is precisely the principle announcecl in 79 Virginia in Wise v. Bigger. 
The case cited is Campbell's case, and the citation is taken from the 
syllabus. 

Where the governor, auditor, and secretary of state, or a majority of them, as the 
board created by section 11 of Article XI of the constitution, for the decennial appor- 
tionment of the State for members of the general assembly, have made the apportion- 
ment, they can not be required by mandamus, or otherwise, to make another appor- 
tionment, unless the apportionment as made, so far disregards the principles pre- 
scribed by the constitution as to warrant the court in saying it is no apportionment, 
and should be treated as a nullity. The apportionment made by the board, concurred 
in by the auditor and secretary of state, at the session of the board held April 13, 1891, 



102 PARSONS VS. SAUNDEES. 

does not violate any of the principles prescribed by the constitution, and is a valid 
apportionment. 

This apportionment was assailed as violative of the constitution 
of Ohio, on the ground that it was gerrymander; that the legislative 
discretion had been unwisely exercised. But see the answer of the 
court on pages 437 and 442. 

It is not sufficient for us to be of opinion that we could make a better apportion- 
ment than has been made by the board. For us to interfere and direct another 
apportionment, the apportionment must so far violate the constitution as to enable us 
to say.that what has been done is no apportionment at all. (Id., p. 437.) Whether 
the discretion imposed has been wisely or unwisely exercised, in this instance, is 
immaterial. The board had the power to make the apportionment. For the wisdom or 
unwisdom of what they have done, within the limits of the power conferred, they are 
answerable to the Rectors of the State and to no one else. (Id., p. 442.) 

Mr. Carrico. May I ask you this question ? In what respect does 
the act taking Floyd County out of the Fifth district conflict with the 
constitutional provision which says that the districts shall be com- 
posed of contiguous territory, and as equal as practicable in popu- 
lation ? 

Mr. Saunders. According to the argument of your associate this 
question is a federal one, and if that contention is well taken, the 
constitution of Virginia is foreign to this case. Your associate 
further maintained that this is a question of power. If that be true, 
then we should consider whether or not we have the authority to 
make apportionments and not whether a particular apportionment 
is a reasonable or an unreasonable one. But this does not mean that 
if I could bring before this committee the considerations which 
moved the Virgmia legislature when it passed this act I would not be 
able to satisfy them that in all respects it was a proper act apart from 
any question of constitutional authority. But we are precluded 
from taking up that inquiry. Hence let us consider the question of 
power. If the legislature possessed the power to make apportion- 
ments, then it is not a matter of pertinent inquiry whether the appor- 
tionment under consideration was subject to criticism. We are con- 
cerned with the power of the courts to compel the exercise of legis- 
lative discretion. 

For us to adjudge the act unconstitutional and declare it void 
would, in my judgment, be a most unwise construction, and would 
be to arrogate a power of interference as dangerous in the precedent 
as it seems unwarranted by law. (Carter v. Rice, p. 512.) 

The decision of the legislature, in the exercise of discretion as to the apportionment 
of senatorial districts, is final and not subject to review by the courts. Yet jurisdic- 
tion exists in the courts to determine whether or not the statute is within such dis- 
cretion. (People V. Thompson, 155 111., p. 451.) 

The moment a court ventures to substitute its own judgment for 
that of the legislature in any case where the constitution has vested 
the legislature with power over the subject, it ventures upon a field 
where it is impossible to set limits to its authority, and where its dis- 
cretion alone will measure the extent of its interference. (60 111., 
p. 86; Cooley's Constitutional Limitations, p. 200.) 

There is a great difference in saying whether the principle of compactness has been 
applied at all, or whether the nearest practical approximation to perfect compactness 
has been attained. The first the courts can determine, the latter is for the legislature. 
(People V. Thompson, 155 111., p. 481.) 



PARSONS VS. SAUNDERS. 103 

No district, unless a circle or a square, could be so compact that it could not be 
made more so. (Id., 482.) As much as the disposition of the legislative majority to 
obtain an undue partisan advantaa;e by senatorial apportionment at the expense of 
equality in representation is to be deplored, the evil can not be remedied by the 
courts so long as the power to commit it is left in the body on which the duty to make 
the apportionment is imposed. (People v. Thompson, 155 111., p. 485.) 

This is the crux of the whole matter, whether this final power of 
discretion shall rest with the legislature or shall be exercised by the 
courts in making apj^ortionments. 

Mr. Nelson. I want to get your argument, and keep it constantly 
in mind, to the question I gave you as to a concrete illustration of 
no apportionment at all. You gave me a gross violation as one, but 
now you deny it entirely. You say that we are not to look into that. 

Mr. Saunders. My answer to Mr. Carrico was in respect to a line 
of thought that he desired me to take up with res])ect to the Virginia 
constitution. 1 say that the act of 1908 is so far from the line of 
nullity, that it is not necessary for the committee to inquire into the 
details of that act in the respect of compactness and contiguity. In 
both particulars the act is constitutional. 

Mr. Nelson. Su})posing the counties were not contiguous at all; 
would that be a bar from looking into it ? 

Mr. Saunders. Your question suggests a very different situation 
from any in this case. All the courts maintain that when a constitu- 
tion requires that the counties of a district shall touch or that each 
district shall have a prescribed minimum of population, no exercise 
of discretion is called for. If the counties do not touch at all, or if 
the prescribed minimum is not afforded, the act will be avoided — all 
the courts hold this — but when the words, as nearly as may be, or kin- 
dred expressions are used in respect to compactness and population, 
the widest range of variation in these particulars is permitted to the 
legislature before the courts of New York, and otlier States cited 
deem that a court can avoid a legislative apportionment. In the 
first situation supposed the legislature is to do a ministerial act. The 
courts draw the distinction I have made in the cases which I have 
cited and upon which I rely. They say, for instance, that if the con- 
stitution of a State prescribes that in each district there shall be a 
population of 150,00(3 or that there shall be six counties and the legis- 
lature undertakes to make a district of four counties or one with a 
population of 125,000, then in a case of that sort there has been a 
failure to discharge a ministerial duty, and the act is void; but when 
a constitution prescribes that the districts shall be compact, or as 
nearly equal as mav be in population, they hold further that the court 
can not prescribe a rule of mathematical conformity to be followed by 
the legislature. Such action on their part would be to eliminate the 
discretion of the legislature antl set up a supervisory discretion in the 
courts, which those tribunals ought not to exercise in matters of this 
character. 

Mr. Nelson. I may be somewhat obtuse about this, but I would 
like to have your thought along this line. Have you a right to look 
into the use of a discretionary power at all ? If so, is it a question of 
degree with you ? 

Mr. Saunders. I would say, frankly, it is. I do not believe, so 
long as you can say of an apportionment in Virginia merely that it is 
not fair, or that it is unjust, or that it is not such an apportionment as 
you would make under similar conditions, that you have reached the 



104 PARSONS vs. SAUNDERS. 

limit of constitutionality. In order to avoid the act you must be 
able to say in the terms of the cases cited : ' ' This is not an apportion- 
ment at all, it is a nullity. 

Mr. Howell. When the court exercised the power of apportion- 
ment in 1906 with respect to the Fifth and Sixth districts, there 
seemed to be an inequality of apportionment and a lack of compact- 
ness of contiguous territory, and the legislature subsequently, with 
that disparity existing, goes to work and passes an apportionment 
increasing the disparity of population. 

Mr. Saunders. Yes; that is a correct statement of fact, but I 
maintain that the legislature of my State merely did what it had the 
legal right to do. I heard a great deal on yesterday about the unit 
of population to be considered in the make-up of the districts. I do 
not find that the States have practically regarded this unit in forming 
their districts. Hence it would seem that they have not considered 
that they were required to conform to it. Take the State of New 
York. As I pointed out on yesterday, the disparities between its 
districts are far greater than any that we find in Virginia. It has 
one district with 160,000, and another district with 450,000 popula- 
tion. I do not find that the matter of population seems to cut any 
figure, in the practical construction of congressional districts by the 
States, anywhere in the United States. If Virginia has the right to 
arrange her districts so that in the judgment of her legislature an 
arrangement is efi^ected which will promote the best interests of her 
people, I do not see that such divergencies from the so-called unit, as 
exist in our present apportionment, are a matter of material consid- 
eration. 

Mr. Thurston. I shall insist, and I will give you the benefit of it 
right now, that the legislature of Virginia never apportioned the 
State under their constitution; that this act which we have been 
calling the apportionment act was not an apportionment act, but 
was simply an act attempting to destroy an apportionment already 
made. 

Mr. Saunders. Well, so far as that is concerned, every act which 
rearranges the districts is an act of apportionment. You may insist 
that one exercise of the power of apportionment exhausts the power 
of the State in this respect, but it is not even a plausible view that the 
second act is not an act of apportionment. I submit that the proposi- 
tion that the second act is not as much a rearrangement of the dis- 
tricts as the prior act is one which has no basis of authority in any 
of the authorities cited. For a hundred years the States have been 
rearranging their districts, at their pleasure, without let or hindrance 
from any quarter. 

Now, what does this case further say: 

For the wisdom or unwisdom of what they have done, within the limits of the power 
conferred, they are answerable to the electors of the State and to no one else. (48 Ohio, 
p. 442.) 

In other words, this case repudiates the proposition that the courts 
should undertake to be a cure-all for every evil, or mischief of which 
an individual or a community may complain. The courts are doing 
a great work within their sphere, but the hope of the Republic is not 
necessarily in these tribunals. There was a time in English history 
when the rules and established decisions of the courts had to be over- 
turned in the interests of human liberty. 



PARSONS VS. SAUNDERS. 105 

There are many questions which for their ultimate sokition must 
be left to the ))eople. In my view this is one of them. 

Counsel for contestant say that they filed some newspaper editorials 
critical of the act of 1908, which warned the legislature that they 
were treading on perilous ground; that the peo})le would defeat 
them. If this be true, why is not contestant satisfied with the situa- 
tion ? We have played into his hands. I may well say to contest- 
ant, you are not consistent. If you are satisfied that the people 
will rebuke this action of the legislature, why not await and abide 
their decision ? Why did you take your chances at the polls, and 
failino; there, ask Congress to do what the voters would not do, 
namely, give you a seat in Congress ? Why did you not apply to the 
supreme court of Virginia to avoid an act wdiich you aver is plainly 
unconstitutional? Our supreme court is vested with authority to 
hear your case and w^ould have entertained your apjilication. Wliy 
did you not apply to it and thus save this committee the consumption 
of public time, which has been required for the hearing of this case, 
as well as save the country at large the expenditure of money which 
this case has involvetl ? You took that appeal to the people which 
your new^sj)aper authorities declared would be decided in your favor. 
Why have you not been satisfied to abide their decision ? 

Now, I desire to call the attention of the committee to a case 
in our supreme court that interpreted the Virginia constitution. 
Mr. Montague said on yesterday tliat he was going to show all sorts 
of things about tliat (k^cision. He really made me apprehensive over 
a case that I regarded as supremely autlioritative ; but when he 
came to actually discuss the case he walke<l lightly, as he did when 
he treated of other matters in the course of his argument. He 
proceedefl gingerly ind.^ed, as one wno not only skates on thin ice, 
but in addition is apprehensive of suchlen pools in which he may 
find himself engulfed. The decision of the supreme court of our 
State in Wise v. Bigger is one of those pools. Governor IMontague 
undertook to contend that the last apportionment act in Virginia is 
unconstitutional, on the ground tliat th;^ legislative action violated 
certain constitutional requirements committed to its discretion. In 
connection with the case of Wise v. Bigger he referred to a fact that I 
want to bring out a little more elaborately, because nothing could 
tend so effectually to show" how autlioritative that decision is as a 
recital of the circumstances under which it was rendered, and of the 
political make-up of the court. 

The legislature of Virginia had just enacted an act of apportion- 
ment. The Democrats were in power in the State for the first time 
in some years. The supreme court of that State, so far as its political 
views were concerned, held views adverse to the dominant party. 
As Mr. Montague said on yesterday, the president of that court was 
Judge Lewis, now district attorney of the eastern district of Virginia, 
a gentleman who has commanded the respect of the Virginia bar 
throughout his long career. The other members of the court were 
Judge Lacey, Judge Fauntelroy, Judge Richardson, and Judge Hin- 
ton. A proceeding to overthrow that apportionment was set in 
motion by John S. Wise, a Republican, who had represented the 
State of Virginia at one time as Congressman at large from the State. 
The act of apportionment which he drew in question was just as bad 
an act, if you choose to put it in that way, as the present act; or it 



106 PARSONS vs. SAUNDERS. 

was just as good an act, if you put it in that way, as the present act. 
He raised before that court the very question of unconstitutionahty 
which is presented here. What was the answer of the court ? 

Let us look to 79 Virginia for that answer. Governor Montague 
undertook o show that the question of unconstitutionahty was not 
really and substantially before the court, but in that he was mistaken, 
as I will presently show. 

It is further alleged by the relator 

And the relator in that case was a member of their own party, 
Mr. John S. Wise — 

that this said act is unconstitutional and void, because the Senate had no right to 
recognize pairs; and because the act does not conform to the requireijients of Article 
V, sec. 13, of the constitution of Virginia, by making congressional districts of contig- 
uous counties, cities, and towns compact, and, as nearly as may be, equal in population. 
Each house of the general assembly is vested with the power of making rules for 
its own government; and it necessarily has the power to grant members leave of 
absence, excuse them from voting when proper, and recognize what are called pairs. 
But the laying ofi and defining of the congressional districts is the exercise of a polit- 
ical and discretionary power by the legislature, for which they are amenable to the 
people whose representatives they are. (Wise v. Bigger, 79 Va., p. 282.) 

So they remitted Mr. Wise to the forum of the people. 

Mr. Nelson. What year was that decision? 

Mr. Saunders. It was in 1884, when, I may say, politics ran higher 
in Virginia than at any other time within my recollection since the 
civil war. So that the usual influences which are supposed to ani- 
mate human beings under such circumstances, so far as the court 
could be considered as affected by them, were in force to incline that 
tribunal to take that view of the apportionment act which was urged 
upon them by Mr. Wise's eloquence. The party of the court had 
just gone out of power. Political bitterness in Virginia was more 
intense than it had been for twenty years, so that the times were 
auspicious for the court to render a decision which would have been 
generally regarded as the outcome of political expediency and not a 
proper interpretation of our organic law. Such were the times and 
such the circumstances under which Mr. Wise assailed the constitu- 
tionality of an apportionment act on the plausible ground that it 
was a vicious and unconstitutional gerrymander. The answer of 
the court confounded the expectations of its party associates. Gov- 
ernor Montague complains of the brevity of this decision. The meat 
of the whole matter is there. Whatever we may say of its brevity it 
comprehends the whole situation; it includes everything that is said 
in the case of Carter v. Rice, People v. Thompson, and in the Ohio 
case, for the attitude of all of these cases is that the courts of these 
States do not care, for reasons of the soundest policy, to interfere 
with the exercise of political discretion by the law-making depart- 
ment. 

Mr. Howell. What is the date of the act challenged there ? 

Mr. Saunders. It had just been passed; in 1883 I think. The 
districts had just been rearranged. Mr. Chairman, the decision in 
Wise V. Bigger, settling the relation of our courts to acts of legisla- 
tive apportionment, may be written in the compass of a man's hand, 
but its brevity is not a just ground of criticism. 

History tells us that one of the world's greatest orations, Lincoln's 
speech at Gettysburg, was written on the back of an envelope. On 



PARSONS VS. SAUNDERS. 107 

that occasion Lincoln followed a gentleman who spoke over an hour. 
And yet that effort is forgotten to-day, while Lincoln's speech will go 
sounding down the ages in omne volu bills aevum. And so with this 
decision to which I refer. It loses nothing by its brevity, 'and so long 
as it is unreversed, its authority is as potent as if its conclusions were 
spread over a thousand pages. 

I venture to say, Mr. Chairman, that never did a court do a wiser 
thing than was done by our Virginia court when it followed that 
line of cases which holds aloof from making political decisions. No 
court can exercise this political, or quasi-political, jurisdiction, and 
escape public criticism of a character which saps public confidence 
in the tribunal. However wisely they may act, however proper 
their decisions may be, when they touch upon those things that 
relate to the governmental functions which are exercised under the 
stress of party passion and of party emotions, they can not escape a 
measure of public suspicion that their action is related to party and 
not to legal considerations. This suspicion affects the usefulness of 
those courts in the discharge of purely judicial functions. So the 
supreme court of Virginia said, in substance: "We will not enter 
on this troublous road. This cup is not ours, but that of the lawmak- 
ing department. Let them take up the burden, and for the discharge 
of these vexing functions be answerable to that ultimate tribunal, the 
people. We will content ourselves with the discharge of our purely 
judicial functions, undisturbed and unrelated to apportionments 
and the exercise of legislative authority." 

Now, I want to ask another thing. Governor ^Tontague relates 
his case to the power of the legislature. He did not undertake to 
argue questions of legislative discretion. He seemed to admit that 
if the legislature can make an apportionment, its discretion in matters 
of detail is extensive and comprehensive. But he did not point this 
committee to the way to overcome the force and effect of Davidson v. 
Gilbert, which presents a view both of right and of policy, directly 
contrary to the one which he maintains, nor did he advise this com- 
mittee how to overcome the binding effect of Wise v. Bigger in con- 
struing the constitution of Virginia. It is a familiar rule of law that 
a federal court in construing the constitution of a vState will follow that 
construction which has been afforded by the court of last resort of 
that State. 

Thf decisions on this line are familiar to all of us. I have tlvem 
here and can cite them. But it is hardly necessary to cite them in 
this connection. This committee, composed as it is of lawyers, 
knows the effect proper to be given to the unreversed decisions of the 
state courts by a foreign tribunal undertaking to construe local legis- 
lation. 

If the case of Sherrill and O'Brien, 18S New York, is here, and I 
think it is, I wish to call the attention of the committee to its conclu- 
sions. It v.as suggested the other day that this case had reversed 
Carter v. Rice. But such is not the case. I repeat the proposition 
then made that if there is any decision that could empliasize the 
authority of Carter v. Rice it is this subsequent case. 

In support of that proposition I will read you some of its con- 
clusions. 

Mr. Saunders. It must be borne in mind, as a part of the facts, 
that Rice and Carter was decided upon a constitution which, when you 



108 PAESOKTS VS. SAUSTDERS. 

look at it, as cited in contestee's brief, is practically the constitution 
of the State of Virginia. (See Brief, p. 16.) That makes Carter v. 
Rice an authoritative case in support of the action of the Virginia 
legislature, in making the apportionment either of 1906 or 1908. 

xlfter that case was decided, the constitution of New York was 
changed by the convention of 1894. Then another apportionment 
was made pursuant to that constitution. That apportionment was 
reviewed in the court of appeals of New York and avoided. This is 
what the court says in that connection: 

Can it be doubted that in view of the history of the constitutional change, in regard 
to a legislative apportionment, which shows an actual withdrawal from the legislature 
of discretionary power and the continued adding of limitations upon their power 
relating thereto, and in view of the clear intention of the constitutional convention of 
1894 and of the people in adopting the constitution, that this court should now hold 
that the minimum of discretion necessary to preserve county and other lines, and to 
give reasonable consideration to the other provisions of the constitution, is left to the 
legislature? Can we doubt, with respect to this legislative enactment, that it is sub- 
ject to review by the court? 

While we recognize the binding force of the case of Carter v. Rice as applied to the 
facts then before the court, and in the construction of the constitution as it then 
existed, we are of the opinion that the constitution as it now exists should be con- 
strued so as to require that the legislature, in dividing the State into districts, make 
as close an approximation to exactness in the number of inhabitants in the districts 
as is reasonably possible, in view of the other constitutional provisions, and that such 
approximation is the limit of legislative discretion. 

In view of that construction, not in view of any change of attitude 
toward the propriety of the decision — for several of the judges of the 
court who sat in the later case participated in the decision in Carter 
V. Rice — it is perfectly clear that the later case rests upon altogether 
different grounds from those upon which Carter v. Rice reposes. 
One of the judges, delivering an opinion in Sherrill and O'Brien, states 
that he would not agree with the conclusions reached except for the 
fact that the conditions had been changed by the promulgation of a 
new constitution. 

But as showing how strongly some of the judges held to the idea 
that the courts should not meddle with legislative discretion, you 
will find a strong dissenting opinion in the later case in which the 
judge holds, in spite of the fact that there was a new constitution 
limiting the authority of the legislature and enlarging the authority 
of the courts, that the act which was drawn in question in that case 
was constitutional. 

I will read further. This is from Justice Gray: 

I should hesitate to agree with the opinion of my brother Chase as to the unconstitu- 
tionality of the apportionment act if I were not convinced that the amendment of the 
state constitution in 1894 had materially changed the rules which should govern the 
apportionment by the legislature of the representatives of the citizens of the State. 

In the case of People, exrel. Carter, v. Rice (135 N. Y., 473), which involved the 
apportionment act of 1892, and in the decision of which I took part, I was of the opinion 
that the then existing constitutional provision vested a certain discretion in the legis- 
lative body in exercising its power with which the court should not interfere when 
there had been neither a flagrant disregard, nor an unmistakable violation of the con- 
stitutional injunction, that the apportionment should be "as nearly as may be " accord- 
ing to the number of citizens. 

As may be discovered from the debates in the constitutional convention of 1894, the 
decision of the Rice case moved that body to recommend new provisions or rules for 
an apportionment. They were intended to remedy whatever defectiveness in the old 
rules made possible the inequalities observed in the preceding apportionment act. 

It is of great significance — 



PARSONS VS. SAUNDERS. 109 

We find here the contiolhno; authority for the decision in Sherrill 
and O'Brien — 

And it necessarily has a most important bearing upon the attitude of the court 
toward the legislative action, that the article of the constitution (Art. Ill, sec. 5) 
expressly provides for a judicial review of any apportionment by the legislature. 

A constitutional convention was needed to change the rule in 
Carter v. Rice for apportionments in the State of New York. 

The legislature now exercises its power subject to review by the court of its act, 
which any citizen may invoke. The article, in its present form, as Judge Chase well 
points out, reduces the discretionary power of the legislature to a minimum. The 
limitations upon its exercise are relaxed, practically, only with respect to the preser- 
vation of county, town, and block lines. 

I want to say in this connection that those constitutions which, 
like the Virginia constitution, have the words "as nearly as may 
be," have been construed by the courts as affording discretion to the 
legislature. But the court supra asserts that what had been hitherto 
discretionary in New York had been made mandatory by the last 
constitution. The judge proceeds: 

In my opinion, before this amendment of the constitution, it was a grave and a 
doubtful question whether, in the absence of a gross and plain violation of the con- 
stitution, the court was justified in interfering with the execution by the legislative 
department of the government of its duty of apportionment. But by the amend- 
ment the matter is placed upon a different basis, and a duty is devolved upon the 
court to review an apportionment when complained of, and thereby to enforce the 
constitutional mandates as there expressed. 

Mr. Nelson. Were the words "as nearly as may be'' in the con- 
stitution in the Rice v. Carter case ? 

Mr. Saunders. Yes; that is true. 

Mr. Nelson. And are not the same words in this, practically? 

Mr. Saunders. The constitution is not before me, but the judge 
says, in what I have just read, that by constitutional enactment in 
that State the legislative act is subject to review by the courts. It 
is made expressly subject to review by the courts, and the legislature 
is stripped of that power of discretion accorded to it by Carter v. 
Rice. Now, just a word further. 

Mr. Tou Velle. Are there any more Virginia cases on that subject ? 

Mr. Saunders. No. That case stands alone, and unreversed. 
And I want to call attention to that fact, a little further on. Another 
matter. Judge Werner dissents in Sherrill and O'Brien case just 
as a judge dissented in the Wisconsin case. I believe Mr. Nelson 
reported that case. 

Mr. Nelson. I was acting as a newspaper reporter 

Mr. Saunders. You remember that there was a strong dissent in 
that case. 

Mr. Nelson. Not in the first case; they were unanimous in the 
first case. 

Mr. Saunders. But when the broad proposition was presented of 
interfering with legislative discretion in settmg aside apportionments 
there was a strong dissent, and the dissenting opinion in that case is 
as good an exposition of the principle for which I contend as any 
exposition of it with which I am acquainted. 

There is a feature of the Sherrill case to which I would like to call 
your attention. In order to overcome the binding force of Carter v. 
Rice, it was necessary to rewrite the constitution of New York, and 



110 PARSONS VS. SAUNDERS. 

to write into it new language which gave the court the authority 
which under the old constitution they had declared that they did not 
possess. How is it in Virginia ? In Virginia the case of Wise v. Bigger 
was decided under the old constitution, and later a new constitution 
was adopted. The language of the new constitution, with respect to 
the power of apportionment lodged in the legislature, while it is 
changed in form from that used in the old constitution, is in sub- 
stance absolutely the same. (See brief, p. 24.) So in the one case if a 
new constitution was required to effect a rule different from that 
established in Carter v. Rice, would it not reasonably seem in the 
other that when the later constitution of Virginia reenacted the 
terms of the prior constitution, it affirmed the interpretation which 
had been placed upon that section by the case of Wise v. Bigger? 
Is that an illogical or unfair deduction from the facts ? 

I have before me the constitution of the State of Virginia. Sec- 
tion 55 of the present constitution replaces sections 12 and 13 of 
Article 5 of the old constitution, which are as follows: 

Article V, sec. 12. The whole number of Members to which the State may at any 
time be entitled in the House of Representatives of the United States shall be appor- 
tioned, as nearly as may be, amongst the several counties, cities, and towns ofjthe State, 
according to their population. 

Sec. 13. In the apportionment the State shall be divided into districts correspond- 
ing in number with the Representatives to which it may be entitled in the House of 
Representatives of the Congress of the United States, which shall be formed, respec- 
tively, of contiguous counties and towns, and be compact, and include, as nearly as 
may be, an equal number of population. 

That is the old constitution. That was the basis of Wise v. Bigger. 
Here is the new constitution: 

The general assembly shall by law apportion the State into districts, corresponding 
with the number of Representatives to which it may be entitled in the House of Rep- 
resentatives of the Congress of the United States, which districts shall be composed 
of contiguous and compact territory, containing, as nearly as practicable, an equal 
number of inhabitants. 

The most astute counsel the world has ever known could not dis- 
cover any difference of meaning between the sections of the two 
constitutions. That is the situation in Virginia to-day. 

The new constitution, by reenacting the substance of sections 12 
and 13 of the old constitution, has affirmed the meaning stamped upon 
those sections of that instrument by the court of last resort. It is 
a familiar principle that when you enact the legislation of another 
State, which has been interpreted by the courts of that State, you are 
presumed to have adopted the interpretation imposed on the act 
by the courts of the sister State. 

But that is not anything like so strong a case as this. A later 
constitution of my own State embodies in its provisions the substance 
of two sections of a former constitution, which had been interpreted 
by our supreme court. The later constitution would thereby seem 
to ratify that interpretation. 

Now, I want to ask why it was necessary for this committee to be 
plagued here with this contest? Why was it necessary for public 
money to be expended in its prosecution and defense ? Why was it 
necessary for your time, and my time to be consumed, to the prejudice 
of public interests, when the laws of Virginia afforded him two years 
ago a plain road of attack on the constitutionality of this act ? 



PARSONS VS. SAUNDERS. Ill 

Mr. Nelson. I want to get at the facts. Where was the plain road 
open if the constitution barred it, as you say, that it would not leave 
a discretionary ])ower because that was a matter for the legislature ? 

Mr. Saunders. I say there was a plain road open to test the consti- 
tutionality of the act. 

Mr. Nelson. But, if 1 understood you, the court in Virginia decided 
that it would not review the political 

Mr. Saunders. That is true. That was the effect of Wise v. Bigger. 
But if they desired to have that case reviewed and reversed, if possible, 
our procedure afforded the contestant antl his friends a simple method 
of submitting the whole cjuestion to our present court of ai)peals. 
Now, the fact that they did not make this a|)plication to the sui)reme 
court is evidence that they feared that Wise v. Bigger would be 
affirmed. Will this committee take a different view of a state con- 
stitution on an inciilental ([uestion from that established by the ulti- 
mate court of that State ? Is it possible that such a view as that 
could be maintained ? If Wise v. Bigger is not good law, it could have 
been tested by an application to the courts of Virginia. If that is 
the law of Virginia, then contestant is asking this committee, a com- 
mittee of Congress, to overthrow an interpretation of the constitution 
of Virginia afforded by the highest court of that State. That is the 
situation. 1 say the road was open to him. It was an easy road, too. 
I do not mean to say that it would have been easy to overthrow Wise 
V. Bigger, for I do not believe that the supreme court of Virginia 
would have reversed that case, and the fact that contestant did not 
make the effort to draw the statute in issue before our court is good 
evidence that he, too, holds to the same view. But it was an easy 
matter for him to raise the question before the court. Now, he comes 
to Congress and says: "I want you to upset an apportionment act, 
not by virtue of a congressional statute, but by virtue of the exercise 
of powers on the part of a state legislature, which the highest court 
of that State had affirmed to be its constitutional attribute. No like 
proposition, in the course of all time, was ever presented to the Con- 
gress of the United States. 

Mr. Thurston. Suppose some one had brought a case in Vir- 
ginia to test that question and it passed through your courts and, in 
process of time, had been decided. 

Mr. Saunders. Yes. 

Mr. Thurston. Would that stand as a bar to the jurisdiction of 
the (^ongress of the United States to pass upon it ? 

Mr. Saunders. You are asking a question that is easy of answer. 
In one sense, Congress is a law to itself. If, without regard to law^, 
precedent, decisions, and constitutions, as expounded by the authori- 
tative exponents of those constitutions in the States, this House, in 
defiance of these things, should chose to seat this, or any other con- 
testant, it possesses the final authority to do so. It can say: "Away 
with the Virginia constitution; away with the federal statutes." 
This House possesses the authority to seat a contestant under any 
circumstances. 

Mr. Thurston. I am asking whether in that case that would be 
a bar. 

Mr. Saunders. In the sense that it would preclude this committee, 
as it Avould preclude a nisi prius court in Virginia, it does not. I do 
not sav that it would. I do not say that this House can not disregard 



112 PARSONS VS. SAUNDERS. 

our laws and the decisions of our courts on those laws if it chooses 
to do so. 

Mr. Thurston. What benefit would it be for a contestant to sit in 
any one session of Congress to have a proceeding brought in your 
state court which could be brought to your supreme court and then 
necessarily go to the Supreme Court of the United States ? 

Mr. Saunders. Not necessarily at all. Why would it go to the 
Supreme Court of the United States on a question of the interpreta- 
tion of state laws ? The case would be brought in the state courts. 
Mr. Parsons was a member of the state senate when the law was 
passed. He claimed then that it was a palpable violation of the con- 
stitution of the State. 

Mr. Thurston. If it v/ent to the question of the right of any man 
to represent any one of those districts in the Congress of the United 
States, it would involve a federal question which would allow either 
side to take it to the Supreme Court of the United States. 

Mr. Saunders. That brings us to another view. I am talking ex- 
clusively about the constitution of Virginia. Wliy would contestant 
have been delayed by submitting this question of constitutionality 
to our supreme court? He has been more delayed by the course 
taken than he would have been by an appeal to the court of his own 
State. If the supreme court of Virginia had decided that the act of 
1908 was unconstitutional, the legislature would have had an oppor- 
tunity to reassemble before the election and enact another statute of 
apportionment. 

Mr. Nelson. Are you not assuming there that they would have 
gone into the merits of the case ? 

Mr. Saunders. I assume that the contestant would have pre- 
sented to the supreme court of Virginia the exact case that was pre- 
sented in the case of Wise v. Bigger, that the statute complained of 
was an unconstitutional gerrymander. He would have presented 
the exact case presented to the courts in all these apportionment 
cases, namely, that the act complained of was unconstitutional. 

Now, let me show you how easy it would have been to get this 
question before our supreme court. If that law was unconstitu- 
tional and void, it could have been attacked in a variety of ways. It 
is a maxim with us that a void thing can be attacked anywhere. 
According to the contention of Mr. Parsons, presented on the floor of 
the Virginia senate, this law was unconstitutional. He could have 
raised the question of unconstitutionality before the bill was enrolled 
by a mandainus proceeding. He debated its unconstitutionality and 
contended at the time that it was a nullity. 

Mr. Parsons. I was allowed ten minutes. 

Mr. Saunders. That was more than you needed to argue against a 
plain decision of our highest court. But the session was almost at an 
end and the time of all parties was very limited. However, I suppose 
you used the time given to direct your oratorical artillery upon the 
unconstitutionality of the act. 

Mr. Thurston. That was as much time as the court used in passing 
upon that particular question. 

Mr. Saunders. Oh, no ; the opinion in this case was a very elaborate 
one. 

Mr. Nelson. As a matter of fact, do they cite a single case or use 
any argument ? 



PARbONS VS. SAUNDEKS. 113 

Mr. Saunders. Was tluit needed in order to make the case an au- 
thoritative interpretation of the constitution of Virginia ? 

Mr. Nelson. I am askinjij as a matter of fact if the other cases were 
cited ^ 

Mr. Saunders. No. There were the other cases that might have 
been cited, but those citations woukl not have increased the authority 
of Wise V. Bigger as an exposition of our constitution. 

Mr. Nelson. What do you say to Mr. Montague's point, that this 
case has not been cited ? 

Mr. Saunders. He is simply mistaken. Mr. Montague came up 
here to argue a case upon which lie had not adequately prepared him- 
self. This case has been cited. It is true that the court does not cite 
any cases, but they sum up the whole proposition. We do not need 
the citation from any cases to make Wise ;'. Bigger the law of Vir- 
ginia. It has never been reversed, and it has never been challenged. 

The Chairman. What do you say about the exhausting of the 
power '^ 

Mr. Saunders. I will reach that a little later. 

The Chairman. You will reach that later ? Very well. 

Mr. Saunders. My friend, Senator Thurston, was speaking about 
delay in connection with an application to the courts to annul the act 
of 1908. Let me show you how simple the procedure would have 
been by a citation from W^ise ?'. Bigger. 

Mandamus: This court hath jurisdiction to declare what arts of the jjeneral assembly 
are, and what are not laws, and to award a mandamus to compel the keeper of the rolls 
to strike from the rolls, and the superintendent of the public printing to omit from the 
acts of the assembly, any act which, in the judoment of this court, is not a law, upon 
the petition of any citizen of this Commonwealth. 

So I say that all that contestant needed to do was to walk across 
Capitol Square and tile his petition for a mandamus to compel the 
keeper of the rolls to strike from the rolls an unconstitutional act. 
The supreme court w(Hild liave issued a rule nisi at once. 

Mr.~CARRico. Is it not a fact, as stated in that case, that the 
keeper of the rolls had placed it on the rolls and the printer had 
printed it '^ 

Mr. Saunders. Well, suppose he had ; what of it ? 

Mr. Carrico. That was a question of time. 

Mr. Saunders. That does not make any difference. Suppose the 
keeper of the rolls had enrolled the bill. This case declares that the 
court had the authority to have it stricken off. What difference 
does it make whether it had been entered or not, if it was an uncon- 
stitutional entry? All that was necessary was to secure a mandate 
from the supreme court directing the keeper to strike this nonentit}^ 
from the rolls. 

Mr. Thurston. This contestant having the right to appeal to the 
tribunal fixed by the Constitution as the tribunal to decide upon his 
rights to a seat in this body, how is he to be prejudiced or reflected 
upon in any way because he did not pursue some other course ? 

Mr. Saunders. For this reason. If there is a measure of discre- 
tion on the part of the committee with respect to entertaining a con- 
test, this is a case in whicli that discretion ought to be exercised and 
the contest dismissed. In this case of Sherrill and O'Brien in New 
York, where an application was made to avoid an act of apportion- 

38069—10 8 



114 PAESOIsrS vs. SAUNDERS. 

ment, one of the judges declared in liis opinion that the appHcation 
ought to be dismissed, on account of laches. I think there was 
laches here, if the constitution of Virginia is relied on. Contestant 
ought to have applied to the courts of his own State for an exposition 
of that constitution. 

The Chairman. But suppose your supreme court had passed upon 
it and these people knew that the decision would probably be adverse 
to them; didn't they have the right to bring the case here? 

Mr. Saunders! Oh, yes ; they had the right. But having come here, 
and avoided raising the question of constitutionality in the courts of 
Virginia, how can they assert in the face of Wise v. Bigger,, that the 
act of 1908 is unconstitutional? 

The Chairman. No; having exercised their right as they have a 
right to, to come here, I don't think it helps the case at all to criticise 
their coming here. The question is, after having come here and 
raising the question that they do, it seems to me that the contention 
in this case that Mr. Thurston makes, more particularly than any 
other, is the exhausting of the power of the state legislature, and that 
is what I am very anxious to hear j'-ou on. 

Mr. Saunders. Yes; but I am trying to call attention to the con- 
fusion that has resulted from pursuing this course, instead of pur- 
suing the other. This law was enacted in the spring of 1908 and it 
could have been passed upon and overthrown m Virginia if it was 
unconstitutional. 

The Chairman. Certainly, and have saved as a great deal of work. 

Mr. Thurston. I do not think I misread this case when I say that 
the act of the Virginia legislature dividing the State into ten con- 
gressional districts at that time was the first act of apportionment 
that passed under the previous census. 

Mr. Saunders. Yes; that is right. 

Mr. Thurston. And also, that it was alleged or claimed that the 
districts as thus created were not of compact and contiguous territory. 

Mr. Saunders. I don't know anything about that, except what 
the court says. 

Air. Thurston. But I am reading the allegations on which the 
bill is brought. There is no claim here that the legislature violated 
those provisions of the constitution which required the districts to 
consist of contiguous and compact territory and as nearly equal as 
possible in population mth the other districts. 

Mr. Saunders. The court says that the laying off and defining 
of congressional districts, whether it is done well or ill, wisely or 
unwisely, judiciously or injudiciously, is an act of political discretion 
with which it has no concern. Whatever may be found in the pre- 
liminary part of the case, that is what the court says in respect to 
the principle for which I have contended here, which is that the court 
of my State will not interfere with the legislature when the latter is 
acting within its powers under the constitution as defined by the 
court. The laying off of congressional districts in Virginia is a 
political, not a judicial, function. 

The courts of the States affirming this principle will not interfere 
unless the apportionment may be called a nullity. 

Mr. Thurston. That attacks, as I understand it, the power of the 
legislature to reapportion the State at any time; it does not attack 
the correct reapportionment ? 



PABSONS VS. SAUKDERS. 115 

Mr. Saunders. Well, there is the decision of the court. If your 
view of it is correct, the court had no authority to make that decision, 
but you surely must be mistaken as to the facts. 

Now, with respect to the exhaustion of power by the passage of 
one act of apportionment. Aj2;ain, Governor Montague undertook 
to brush aside a precedent, a precedent that was established sixty 
years ago, by the case of Perkins v. Morrison, from the State of New 
Hampshire. I have before me the debates in that case, and I will say, 
in that connection, that any Member of this Congress, or a Member of 
any Congress might count himself proud to be able to discuss high 
questions of state as ably, as sufficiently, as comprehensively, as 
cogentl}^, and as learnedl}^ as the questions of that particular case 
were discussed. The case of Davidson v. Gilbert and the proposi- 
tions enunciated therein stand in the way of contestant with respect 
to one claim of this case. It affirms the right of a State to make its 
own districts free from federal interference. The precedent of 
Perkins v. Morrison, so long as it is unreversed, afhrms and supports 
the proposition that a State can change its districts at pleasure 
within a census period. 

Mr. Chairman, why should not tliis be so 'i Sufficient reasons are 
constantly arising for changing the districts within a census period. 
If the proposition was of doubtful authority, every consideration of 
the soundest policy would operate to cause Congress to hold that the 
States ought to possess this power of changing their districts within 
that period. Growth of population, changes of population, changes 
of centers of po])ulation, growth of new interests, as the result of the 
development of the commercial centers of the country — one, or all of 
these considerations furnish at one time or another sufficient rea- 
sons for changing established districts. The possibility thaU the 
power may be abused is no reason why it should be denied. The 
right to apportion as often as it pleases, within a census period, 
ought to be left to the States. Uj) to the present time this power 
has been left to the States, and has been the subject of continual 
exercise. Does it ever suggest itself to these gentlemen, as a mat- 
ter of political argument, that if the legislature of Kentucky, or 
Virginia, or Illinois, or of any other State that has gerrymandered — 
anci I have talked with Republican friends in this (^ongress who 
have told me of some peculiarly shaped districts in their States — 
does it ever suggest itself, I say, that if this right is abused by the 
States it might be abused by the Congress of the United States? 
TJiat suggestion furnishes a sufficient reason why the power should 
not be lodged in Congress. 

I agree that if a power is conferred and the mode and time of its 
exercise is fixed, that that is a limitation on the exercise of the 
power. That proposition commends itself to me. But will my 
opponent tell me wherein that principle applies to this case ? 

I listened in vain on yesterday for Governor Montague, after he 
announced the principle, to which I gave my full assent, to tell me 
wherein any mode or time were imposed upon the legislature of 
Virginia, in respect to the apportionment of the State. Does our 
constitution fix either mode or time ? Does the Constitution of the 
United States fix them ? Does the act of Congress fix them so as to 
bring the power of a]:)portionment in Virginia within that principle ? 



116 PAESOlsrS vs. SAUNDERS. 

If they do I would like these gentlemen to cite me to the provisions 
upon which they rely to support their contention. 

Of course I concede fulh^ that either the Constitution of the United 
States or the constitution of Virginia could impose this limitation 
if it saw fit to do so. I am not contending aganist the proposition 
that by necessary implication either instrument could prescribe 
'rnode and time as efficiently as by direct prescription. One is as 
true as the other. But there is neither direct prescription nor 
necessary implication in this case. 
The constitution reads: 

Article I, section 3. Representatives and direct taxes shall be apportioned among 
the several States which may be included in this Union, according to their respective 
numbers, which shall be determined by adding to the whole number of free persons, 
including those bound to service for a term of years and excluding Indians not taxed, 
three-fifths of all persons. The actual enumeration may be made within three years 
after the first meeting of the Congress of the United States, and within every subse- 
quent term of ten years, in such manner as they shall by law direct. 

Does that limit the States with respect to their apportionments ? 
Is this section modified by the amendment, Article XIV ? 
Article XIV reads as follows: 

Representatives shall be apportioned among the several States according to their 
respective numbers, counting the whole number of persons in each State, excluding 
the Indians not taxed. But when the right to vote at any election for the choice of 
electors for President and Vice-President of the United States, Representatives in 
Congress, the executive and judicial officers of a State or the members of the legis- 
lature thereof is denied to any of the male inhabitants of such State being twenty- 
one years of age, and citizens of the United States, or in any way abridged, except 
for participation in rebellion or other crime, the bases of representation therein shall 
be reduced in the proportion which the number of such male citizens shall bear to 
the whole number of male citizens twenty-one years of age in such Stnte. 

Wfiat does the State of Virginia say ? In my State, Mr. Chairman, 
our organic law imposes a limitation on the legislature in respect to 
apportionments for senators and members of the legislature, but 
there is no limitation with respect to congressional apportionments. 
Our constitution merely says: 

The general assembly shall by law apportion the State into districts corresponding 
with the number of Representatives to which it may be entitled in the House of Repre- 
sentatives of the Congress of the United States; which districts shall be composed of 
contiguous and compact territory containing, as nearly as practicable, an equal number 
of inhabitants. 

No mention of time there; no mention of manner there; nothing 
there which would bring the apportionment acts of our State within 
the principle that the gentleman announced. Here is the act of Con- 
gress — the apportionment act : 

In each State under this apportionment the number to which such a State may 
be entitled in the Fifty-eighth and each subsequent Congress, shall be selected by dis- 
tricts composed of contiguous and compact territory containing, as nearly as practicable, 
an equal number of inhabitants. 

This act, too, is silent as to mode and time. 

The Chairman. Wliat is the difference between those two sections 
of the constitution, the old and the new one, ' ' as nearly as practicable," 
and the other, "as nearly as may heV 

Mr. Saunders. I do not think there is any difference. But if there 
is, Davidson v. Gilbert announces that Congress can not and ought 
not to interfere with apportionments by the States. 



PARSONS VS. SAUNDERS. 117 

11" Cono;ress oiit^ht not to do it, how much the loss ought one House 

to do it '( 

I could not follow Mr. Montague on yesterday in the conclusion 
which he drew from the fact that the act of 1842 was not the same 
as the present act. That is true, but the two acts differ in a respect 
that does not toucli the argument with respect to the exhaustion of 
the power to apportion by one exercise of the power. 

The familiar principle that whether or not an agent, with respect 
to a power conferred is entitled to more than one exercise of the same 
is determined by reference to the terms of the grant of j^ower, might 
be applied to this case. 

■ The grant of power to make apportionments is primarily made by 
the Federal Constitution, and the federal act supposedly passed in 
pursuance thereof: secondarily in my State, by the constitution of 
the State. These instruments will be searched in vain for language 
to support the contention that the mode and the time for making 
congressional apportionments has been fixed or prescribed in anywise. 

Now, what about Perkins and Morrison ? This case, too, though a 
case precisely in point, must be brushed aside, because it is a political 
precedent. New Hampshire was districted under one census and 
within two years the State was redistricted. Then there was a 
vacancy in one of the districts, and the district in which the vacancy 
occurred was not the district in which the member who created that 
vacancy by resignation had been elected. But while that was true, 
that relates to another feature of the case, not important in this 
connection. There were two acts of apportionment within one 
census period. There is no cjuestion about that. Mr. Montague said 
that Perkins v. Morrison was reversed in effect by the case of Hunt 
V. Menard, from the State of Louisiana; but he did not advert to the 
fact, which is a fact, that so far as that supposed reversal by Hunt v. 
Menard of one branch of Perkins and Morrison is concerned, that 
reversal was itself reversed in the case of Pool v. Skinner.. Very 
properly, he said that the case of Hunt and Menard, by reason' of 
other features involved, should not be considered as authority. It 
was too much complicated with other questions. On account of the 
confusion of districts in the State of Louisiana, intimidation and other 
complications, the House held in that case that neither contestant 
nor contestee was entitled to a seat. The House did declare in Hunt 
V. Menard that when a vacancy was created by a member resigning 
in a district, or dying in a district, and the district in which the election 
was held was a different one from that in which the original election 
was held, the second election was void. 

Hunt V. Menard is authority for that proposition, so far as it is 
authority; but in the case of Pool v. Skinner, from North Carolina, 
which is a recent case and in which the same state of facts were pre- 
sented as in the case of Hunt v. Menard, it was helcl that there was 
no merit in the proposition that the districts were different because 
a redistricting had occurred. In that case the member who was 
elected in the district as it stood after the second act of apportion- 
ment was declared to be entitled to his seat. 

So you see Hunt v. Menard, in the only respect in which it could be 
said to reverse the case of Perkins and Morrison, has been reversed 
itself. So that Perkins and Morrison stands to-day witli the full 
force and effect of that authority, whatever authority that may be. 



118 PAKSON^S VS. SAUNDEES. 

Mr. Carrico. In the case of Pool v. Skinner, I suppose you will 
admit that that was the first redistricting under that census. 

Mr. Saunders. That proposition was advanced by Governor 
Montague on yesterday. I don't know that I am disposed to gainsay 
it as a proposition of fact. I don't know whether it is correct or not. 
If it is the fact, all right. It does not disturb the binding effect of 
Perkins v. Morrison, which remains unchallenged to this day. 

Now, I want to read the report in that case. 

The Chairman. That is the New Hampshire case ? 

Mr. Saunders. That is the New Hampshire case; yes. Just as 
the report in this case of Gilbert and Davidson is a striking and 
authoritative exposition of one feature of the law in this contest, so 
is Perkins v. Morrison equally conclusive in another direction. 

That case is found in Hinds, volume 1 

Mr. Carrico. Section 311. 

Mr. Saunders. I don't know whether that gives the section for 
which I am looking. But that reference will enable me to find it. 
You are right. Here it is (reading from Hinds, vol. 1, sec. 311): 

The majority of the committee found as follows: 

' ' By the Constitution of the United States, the right to prescribe the times, places, 
and manner of holding elections for Representatives in each State is declared to be in 
the legislature thereof, subject to the superior power of Congress to make or alter such 
regulations by law." 

The proposition that Mr. Montague advanced on yesterday that the 
power of the States to make apportionments is not derived from 
section 4 of the Constitution heretofore cited, is not sustained, so far 
as I am aware, by a single precedent. Every speaker and every 
precedent touching on the derivation of this power relates the same 
to that clause of the Constitution — every one of them. The com- 
mittee .says further : 

That power, however. Congress has never exercised, unless it was partially exerted 
by the second section of the act of June 25, 1842, to which reference has already been 
made. Limited only therefore by the provisions of that section, the legislatm-e of 
New Hampshire had plenary power to prescribe by what districts the elections should 
be made and to change the boundaries of those districts at its pleasure and at any time. 
No constitutional provision, no law of Congress, restrains this right originally to form, 
or subsequently to alter, the limits of congressional districts, at the discretion of the 
state legislature. 

If I had undertaken to prepare the statement of this proposition, so 
as to put it in the most emphatic and conclusive form for the purposes 
of my contention, 1 could not have stated it more explicitly than the 
committee has done. 

It is conceded that Congress could by law have exclusively determined the extent 
of each district and enacted that it should remain unchanged under the apportionment 
during the entii-e period of ten years. But this has not been done. The act of June 25, 
1842, only enacted that the elections (alike general and special) should be by districts 
of contiguous territory; and, under the law, the limits of each district must be as they 
were before its passage — such as the legislature of the State may from time to time 
prescribe. The act of Congress is merely commendatory. It was not possible to dele- 
gate to the state legislature the legislative power vested by the Constitution in Con- 
gress. It follows, of comse, that the districting acts are the untrammeled action of 
the legislative assembly of New Hampshire and, consequently, that the power to 
change the boundaries of a district remains unlimited in the same legislature. Your 
committee are not informed the disposition has hitherto ever seriously been contro- 
verted. Such appears to have been the common understanding. The legislatures 
of several of the States, after having formed congressional districts, in conformity with 
the recommendation of the act of Congress of June 25, 1842, have subsequently redis- 
tricted the States or made changes in the boundaries of the districts previously formed. 
North Carolina, Georgia, Ohio, and Pennsylvania are among the number. 



PARSONS VS. SAUNDERS. 119 

So it seems that even in that day the State of our friend from Ohio, 
Mr. Ton Velle, was exercising the right, which it has since continued 
to exercise, to change its districts \\dtliin a census period. This riglit 
lias been in continuous exercise by the States. 

The report adds: 

More than 20 Representatives elected by these remodeled districts sit unchallenged 
in the present Congress. 

I don't know how many sit in tlie Sixty-first Congress under tlie 
same conditions. It is not necessary to inquire. 

In the matter of the case of Davidson v. Gilbert, I remember that 
on investigation I found that the legislature of Kentucky, subsequent 
to the passage of the act which formed the basis of the controversy in 
that case, effected another change in its districts within the same 
census period. 

Now, Mr. Chairman, so much for this ])ranch of the case. This is 
the answer which I make, in the terms of law and weighty precedent, 
to the proposition that Virginia has no right to change her districts at 
her pleasure. This precedent affords my answer to the proposition 
that in the exercise of ' 'our untrammeled right," as Perkins v. Morrison 
puts it, to rearrange our districts, we violated either the state or the 
federal constitution. The case which they cite from the State of 
Indiana does not apply, by its very terms, to a situation like the one 
in Virginia, nor is the case that was read on yesterday by Governor. 
Montague any more apt or pertinent. Wliat does that Indiana case 
say ? And, mark you, Mr. Chairman, the Virginia act of 1906 was not 
a general apportionment of the State, in the sense that the legislature 
took up the districts as a whole and rearranged them throughout. 
The act of 1906 made but one change in the districts of the State as 
they had existed for a great number of years, probably since 1883. 
The legislature allowed those districts to remain without change, 
save in one respect, and yet our friends style this legislation an act 
of general apportionment. 

The act of 1906 merely took one city out of tlie district of my 
friend Mr. Maynard and put it into the district of my friend Mr. Jones. 
The act of 1908, two years later, took the county of Craig out of the 
ninth district and put it into the tenth district, and the county of 
Floyd out of the fifth and put it into the sixth district. These 
changes did not make the act one of general apportionment. 

Now, what does that Indiana case say ^ Let me call attention to 
some of its features. 

The constitution of Indiana provides that the members of the sen- 
ate and house of representatives shall, at each session next following 
each period of making such enumeration, be fixed by law and appor- 
tioned among the several counties according to the number of male 
inhabitants over 21 years in each. Under this language the court 
of Indiana could have done nothing else than what they did. It 
was not even an open question under the terms of the Indiana con- 
stitution. 

"The language used fixes the time and mode with the utmost par- 
ticularity and may be considered as an implied inhibition on the 
legislature to make more than one general apportionment." (144 
Ind., pp. 510-512.) 



120 PAESONS vs. SAUNDEES. 

Here is what the Supreme Court holds in the case of Slauson v. 
Kacine (144 Inch, 513) : 

From the general scope and object of the Indiana constitution, it may be said that 
a general apportionment fixed for one time, say once in five years, when once done 
in that period may not be done again in that period, and this implication, perhaps, 
would extend to any particular organization of assembly or senatorial districts by any 
law passed directly for that purpose. 

This concluding statement instantly suggests that even under the 
authority of this case a partial apportionment could succeed a general 
apportionment within a census period. 

A change in one or two counties in the make-up of two districts 
would certainly be a ''particular organization." Another case was 
cited yesterday in this connection — have you got that case. Senator, 
the Illinois case [addressing Senator Thurston] ? 

Mr. Thurston. 172 Illinois, page 499. 

Mr. Saunders. That is the case of People v. Hutchinson, and 
contains a statement of the very principle for which I contend, namely, 
that unless the time and mode of making an apportionment is pre- 
scribed by some paramount authority the power of the legislature to 
make succeeding apportionments is untrammeled and unrestricted. 

In regard to the subject of legislative apportionment, the legislature might, under a 

full and unrestricted vesting of legislative power, enact apportionment laws at their 

pleasure; but a fixing by the constitution of a time and mode for the doing of such act 

is, by necessary implication, a forbidding of another time or mod^ and a prohibition 

' of the exercise of the power in any other way . 

Thus, by implication, forbidding any other time and mode. 

This case, as will be noted when the committee comes to read it, 
simply announces the fundamental proposition that when a limitation 
is found either in the organic law of the federal jurisdiction, or of the 
state jurisdiction fixing the time and mode for the legislative bodies 
to make apportionments, such a limitation will restrict the legislature 
to one exercise of the power granted. Apart from this limitation 
the States enjoy full legislative discretion m the matter of making 
apportionments from time to time. 

With respect to the action of the Virginia legislature, in order to 
convict it of illegahty in passing the act of 1908, it is necessary first 
to overturn Perkins v. Morrison, and, second, to establish with refer- 
ence to its action a like state of facts to that which existed in the 
States of Indiana and Illinois. Otherwise you can not bring this act 
within the principle announced by the courts of those States. 

If these gentlemen say that there is an express limitation with 
respect to time and manner, let them point it out. If it was an open 
question whether or not a State could make its apportionments at its 
pleasure and would contend as a matter of sound policy for this 
right on the part of the States, free from interference by Congress. 

Mr. Nelson. What do you think was the basic reason that caused 
these States like Indiana and lUinois to so frame their constitutions as 
to prevent repeated apportionments. Why would people framing a 
constitution put that provision in it ? 

Mr. Saunders. Well, I don't know the particular reasons for the 
distinction made. Probably the considerations were local to those 
States. All I know is that they did not do it in one instance, and did 
not do it in the other. We made the same distinction in Virginia. 
Doubtless the reason for the distinction ma^^ be found in the fact that 



PARSONS VS. SAUNDERS. 121 

as all tlio States have exercised the iintrainnieled no;ht to make con- 
iijressional a))j)()rti()iimeiits at j)leasure, no one State cared to limit 
itself in that resj)ect. Most, if not all, of the cases relatino; to ap})or- 
tionments which have been set aside by the courts relate to apj)or- 
tionments of assembly and senatorial districts. 

Mr. Nelson. The thoug:ht occurred to me that possibly there was 
some evil that they were tryins; to prevent. 

Mr. Saunders. Well, if there was some evil they were trying to 
correct with lespect to legislative districts they seemed to be indis- 
posed to go any further ami aj)])ly the principle to congressit)nal 
districts. Evidently they thought there was evil in the one situa- 
tion and not in the other. 

I would like to read one selection in this connection from the de- 
bates published in the Congressional Globe. 1 will read this, be- 
cause it appears from the debates that at that time they discussed 
some of the very questions under consideration in this case. These 
debates in the case of Perkins v. Morrison will serve to show that the 
statesmen of that day brought all their powers of keen analysis to 
the solution of the questions which then, as now, were of interest to 
the public. At all times the relation of the Federal Government to 
the powers of the States has been a problem of absoi'bing interest. 
The speaker in this case was a Member who did not agree with the 
wisdom of the New Hampshire act making the second apportion- 
ment; he did not agree with the policy of that act; he did not agree 
with the propriety of the passage of that act. He says: 

I am compelled to vote contrary to what would be fair and atrreeable to abstract 
justice. I don't think the act of New Hampshire to which reference is made is a fair 
and just measure in its operation 

The Chairman. From what page are you reading^ 

Mr. Saunders. This is Congressional Globe, page 189, volume 20. 

In this discussion gentlemen on the other side seem to me to have made four or live 
false assumptions. In the first place, it is a false proposition that we are Representa- 
tives of districts and not of States. It is also a false assum])tion that this House, or 
( 'Ongress, has the right to enforce, within the limits of a State, in reference to elections, 
whatever we may suppose to be ju.stice and equity, irrespective of the laws and 
authority of the State. 

Upon the theory that Congressmen are Rejjresentatives of the States 
and not of the districts, Congress at a later })eriod, and after the pas- 
sage of the first apportionment act, seated a niunber of Congressmen 
who had been elected at large in their respective States. 

It is a false assumption, too, that justice and right, private or public, within a State, 
is less safe in the hands of the people of the State than in the hands of a majority of 
this House or a majority of Congress. It is another false assumption that wherever a 
State might by jxissibility abuse its powers and do injustice to a portion of its citizens, 
there results to this Government a power of ratification and indemnification, as though 
this Government were incapable of floing wrong or of interfering with state action, 
except when a State had done wrong. False as these assumptions are. the argument 
on the other side had no other foundation. The gentleman from Kentucky (Mr. 
Thompson) has dwelt upon the abuses which a State might commit to the injury of 
its citizens if an act like that of the legislature of New Hampshire should be recog- 
nized by this House. It never occurred to him that the people of a State might be 
quite as secure against injustice at the hands of their own legislature as at the hands 
of a majority of (^ongress or of this House, especially where that majority does not 
include a single Representative from the State. He did not reflect that the framers 
of the Constitution may have acted on the principle that the people of a State were 
as safe in their own hands as in the hands of others. In the opinion of some persons, 
it is so absolutely certain that the majority here will do no wrong, even to those whom 
they do not represent, that the bare possibility that the state legislature might do 



122 PARSONS VS. SAUNDERS. 

injustice to those they do represent is a sufficient reason for putting such legislatures 
under congressional duress. 

Those reflections are as wise to-day as they were in that time. 
Further, from the same argument: 

But it is strangely contended that Congress can go into a State, distribute and 
localize suffrage, apportion Representatives among districts, determine the basis of 
apportionment, whether it shall rest upon voters or population; or upon white popu- 
lation, or free population, white and black; or upon white or black population, bond 
or free, or upon any other basis. 

******* 

Sir, the language of the Constitution refers to the election of Senators as well as 
Representatives; and if that language authorizes you to divide the electors of Rep- 
resentatives, how is it that it does not authorize you to divide the electors of Senators? 
If you can district the people, why not district a legislature — give to one body the 

election of one Senator, to the other the other Senator? 

******* 

Now, sir, in relation to the case before the committee, the use I make of the argu- 
ment submitted is this: If Congress can district a State, it can control a State district- 
ing itself. If Congress can determine and regulate the internal rights of the people 
of a State, it can interfere with state laws enacted for that purpose. If the power of 
regulating these matters belongs to a State, it is no business of ours how that power 
is used by the State. If the state laws interfere with no provisions of the Constitution, 
and no law of Congress passed in pursuance of that Constitution, it is our duty to 
observe them, however capricious, or however unjust to a portion of the people of 
the State. 

Mr. Thurston. Is it your contention that Congress could not, if 
it saw fit under the Constitution, define the limits of every con- 
gressional district in the United States ? 

Mr. Saunders. I believe it is asserted by some of the authorities 
cited that Congress can do that; but until Congress exercises that 
power I maintain that the power of the States is unlimited in this 
direction. 

Mr. Thurston. But if it can do it 

Mr. Saunders. In respect to the power to do so, on the part of 
Congress, that question has never been authoritatively and finally 
settled, so far as I am aware. That is a large question, and I do not 
undertake to discuss it in this connection. Upon the question of the 
right to my seat, we are already wading in pretty deep waters, and 
I do not care to enter upon a discussion of the question of whether 
Congress, under the Constitution of the United States, has a right to 
define the limits of every congressional district in the United States. 
Davidson v. Gilbert does not seem to think it possesses that power. 
But conceding that it possesses that authority, it has never exer- 
cised it. 

Now, Mr. Chairman, it is half past 10 o'clock. I have been speak- 
ing something like two hours and I have no doubt that the committee 
is weary. I would like to proceed to-morrow at the pleasure of the 
committee. 

Mr. Nelson. We have taken some of your time in order to get light. 

Mr. Saunders. As I said in the beginning, in respect to matters 
of fact and of law, it is a pleasure to me to have you ask questions; 
because while I do not undertake to say that I can satisfy you by 
my answers, I am at least given the opportunity to cite you to those 
authorities and to those facts which, in my judgment, constitute an 
answer to the questions propounded. So, with respect either to the 
law or the facts I welcome queries. 

(Thereupon, at 10.30 o'clock p. m., the committee adjourned until 
to-morrow, March 4, 1910, at 10 o'clock a. m.) 



parsons vs. saunders. 123 

Friday March 4, 1910 — 10 o'clock a. m. 
The committee met pursuant to adjournment, Hon. James M. 
Miller (chairman) presidmf^. 

The Chairman. Mr. Saunders, we are ready for you to proceed. 

STATEMENT OF EDWARD W. SAUNDERS— Continued. 

Mr. Saunders. I want to gather up a few threads of the matter 
we had under discussion last night and put them into the record. 

I understood Senator Thurston to say last night that he proposed 
to challenge the binding force and effect of Wise v. Biggar, 79 Vir- 
ginia, on the ground that the "gerrymander" feature of the case was 
not properly before the court. Is that correct? 

Mr. Thurston. As to gerrymander not being properly before the 
court, not properly stated in the allegation, that that was not in the 
case at all. 

Mr. Saunders. I thought at the time that Senator Thurston was 
mistaken when he made that statement, but of course I was not able 
at the time to go through the report and point out his error. But he is 
absolutely mistaken, and I wish to call his attention to page 272 of 
the case, where the court recites the allegations of the plaintiff in full 
to the effect that the act in issue was unconstitutional, on the ground 
that it violated the constitutional requirements as to contiguity, 
compactness, and population. So much for that. 

A number of questions were asked me on yesterday in relation to 
the supposed unit of population, necessary to be had in view, in 
laying off congressional districts. There is no unit of population 
that the States have practically^ regarded in the make-up of their 
districts. There is a unit used by Congress in determining how many 
Representatives a State shall have under a given census, but with that 
use the unit seems to pass from sight. My district has been criti- 
cised because it is a.bout twenty thousand people short of the supposed 
unit to which the districts must conform with mathematical exact- 
ness, in the view taken by Governor Montagu^. Hence, presumably, 
the Fifth Virginia District is not a valid creation. But if conformity 
to the unit is the test of legality, there are other districts in my own 
State which can not respond to this test. Even as it stands my 
district is not the smallest in the State. 

The Chairman. There is one other smaller. 

Mr. Saunders., Yes, there is another district smaller by five or 
six thousand. If my district will not be. allowed to remain in its 
present form, on the ground that it is too great a departure from the 
unit of measurement, what will the committee do witli the Sixth 
California District, which has a population of 155,000, or with the 
first Iowa with a ])opulation of 159,000, or with tJie third Connecticut 
with a population of 129,619, or with the third Kansas with a popu- 
lation of 157,842, or the fourteenth Pennsylvania with a population 
of 146,769, or the eighth Kentucky with a population of 143,089? 
The widest variation of population between the Virginia districts is 
less than 60,000. In Connecticut the widest variance is 181,000, in 
New York 450,000, in Pennsylvania 770,000, in Michigan 109,000, 
and in Ohio 91,000. For other great disparities see contestee's brief, 
page 31. 



124 PARSONS VS. SAUNDEES. 

Third Kansas with a population of 157,842, or the Fourteenth 
Pennsylvania with a population of 146,769, or the Eighth Kentucky 
with a population of 143,089. The widest variation of population 
between the Virginia districts is less than 60,000. In Connecticut 
the widest variance is 181,000, in New York 450,000, in Pennsylvania 
110,000, in Michigan 109,000, and in Ohio 91,000. For other great 
disparities see contestee's brief, page 31. 

The Chairman. Unfortunately, the Fourth Kansas is my own 
district. I want to call attention at that point to the fact that 
Shawnee County, where the capital of the State is located, Topeka, 
and which has a population of over a hundred thousand, Shawnee 
County was formerly in the Fourth Congressional District represented 
by Mr. Curtis. The Populist legislature was in power at that time 
and had a majority in the legislature. They wanted to defeat Mr. 
Curtis for election, so the}^ took his county with a Republican majority 
of 3,500 and put it over into the first district, that was already Repub- 
lican by six or eight thousand, and put another county in the fourth 
district which had a Populist majority of 1,500, making the fourth 
district, the one Mr. Curtis formerly represented, and the one I now 
represent, Populistic by 1,240 majority on the vote of two years 
before. It was done in order that they might elect a Populist Member 
of Congress and defeat Mr. Curtis, a Republican. After the next 
election, however, things had changed somewhat, and Mr. Curtis in 
the new district, with only his own county behind him, was nomi- 
nated for Congress and elected. And in the fourth district I was 
nominated, possibly on the theory that I could not be elected, but 
every county in that district gave a Republican majority in that 
election. 

Mr. Saunders. In other words, the appeal was made there to the 
people ? 

The Chairman. Yes. 

Mr. Saunders. That is one of the points I am making in this case, 
that the appeal ought to be made to the people. 

The Chairman. Theje is no controversy there over the second 
apportionment. It was a matter to which everybody yielded. There 
was no claim on the part of anybody that it was not proper for the 
legislature to apportion the State in the way it did at that time. 

Mr. Thurston. Our position in this case is this: It might not be 
considered that these original districts had been arranged in an 
improper apportionment; there might not be found such a disregard 
of the provisions of your constitution or the act of Congress that a 
court could clearly say the general apportionment act was unconsti- 
tutional or in violation of the statutes of Congress; but where the 
State had fixed districts and where one district is smaller and is further 
from complying with the requirements of contiguous territory, and 
thereafter the part of the smaller district is removed and attached to 
the large one, and also the contiguous character of this territory is 
measurably destroyed by that act, there is a case where we insist that 
it is not an apportionment under the constitutional provisions, that 
it can not be excused on any possible theory of an attempt to more 
nearly comply with the requirements of law, and that therefore it 
furnishes that extreme case that is not warranted either under your 
constitution or the act of Congress. 



FAKSONS Vti, SAUNDEKS. 125 

Mr. Saundkrs. I uiiderstaiul tliat is your view of tiio (luestion, and 
while that is a phmsible view, it is absolutely specious. It is far from 
being convincing,' and sufficient, foi' this reason: Senator Thurston's 
associate announced that the question presented in this case is one 
of power. I agree with him. Governor Montague claimed that it 
was a matter of conformity to the unit, and in effect maintained that 
with ])en and paper he could determine in a moment whether an 
apportionment ought to be vacated. He had only to figure out by a 
smiple process of subtraction tlie amount of departure from the unit, 
and the question of constitutionality was solved. If the Fifth 
Virginia District could in the first instance have been constitutionally 
established in its present configuration and with its present popula- 
tion, how can it be said that because the legislature did not reach 
the constitutional limit in the enactment of 1906 it could not move up 
to that limit by the second act ? When the legislature moved toward 
it constitutional limit, ami established by its second action a district 
that it seems to be conceded would have been constitutional if estab- 
lished in its present form by the first enactment, how, and wherein, 
has it done anything objectionable from a legal standpoint, or from a 
standpoint of power, by that action ^ Unless the legislature is lim- 
ited to one act of apportionment, it surely can do in the second 
instance what would have been constitutional in the first. Once 
concede that the district in its present form would be constitutional 
under some one enactment, and the case is conceded out of court. 
If a State can district itself as often as it pleases within a census 
period, and that question is reserved for further consideration, it 
inevitably follows, as a matter of power, that a thing which can be 
done af one time can be done at anothei-, whether that other is the 
second or the final exercise of authority. The second or the third 
acts may be unfair or unjust, but they are not, as a matter of neces- 
sity, unwarranted. The words r lo not equivalents. 

Of course. Mi'. Chairman, all apportionments have a measure of 
political advantage in contem])lation. As members of political 
organizations, and students of political history, we all understand 
that. The Father of his Country figured at one time in a local 
gerrymander, and no doubt thoroughly squared his course with 
his conscience. We need not be humbugs about this matter of 
arranging the States into legislative and congressional districts, or 
affect any superior attitude for any one political party. I do not 
suppose that a political organization ever arranged its congressional 
or other districts that it did not have in mind some party advantage — 
that it did not couple party considerations with other impelling 
motives. This is as true of Kansas, a Repubhcan State, as of Ken- 
tucky, a Democratic State. It is as true of New York as it is of 
Virginia; of Illinois as it is of North Carolina. But the losing party 
merely bides its time, and waits for its revenge, which generally 
comes. A friend of mine from Iowa was telling me a few days since 
of some peculiarly shaped districts in that State, and of one in par- 
ticular which, some years ago, grouped the Democratic vote, which 
made other districts doubtful, into one solid Democratic (listrict. 
This was not done to help the Democrats, as a matter of course. 

Mr. Thurston. Would it not be a good thing to do that nationally, 
to throw all the Democrats together? [Laughter.] 



126 PAESONS VS. SAUNDERS. 

Mr. Saunders. If your contention is sound, that Congress can, 
and ought to, arrange all the congressional districts, or at least 
exercise a compelling force in the matter, then in time we would 
have a national gerrymander, and logically the Supreme Court ought 
to be vested with power to overlook the action of Congress and 
to supervise the exercise of its discretion. That Congress is not 
averse to a little gerrymandering is shown by the Oklahoma ena- 
bling act. 

Coming back to Virginia, why should Governor Montague's unit 
rule be appKed to overthrow the districts in that State, when those 
districts are in no wise remarkable for their disparities ? 

What would Governor Montague have this committee to do with 
the Fifteenth New York, with its population of 265,000, and the 
Eighteenth New York, with its population of 450,000 ? Will he 
ask for the application of the same rule to these districts that he 
desires to see applied to the Virginia districts ? Is Congress to 
run amuck among the States, unseating every Member whose dis- 
trict shows an appreciable divergence from the unit of population ? 
If so, it will be occupied for quite a while to come in rectifying the 
divergences that exist in practically every State in the Union. 
When we enter upon this colossal job of house cleaning, there will 
certainly be a respite from our activities in other directions. I have 
not cited the disparities in other States in order to contend that if 
they are doing wrong Virginia ought to be granted the same privi- 
lege. I have cited them for a very different purpose. I have cited 
them to show that this uniform and uninterrupted disregard of the 
so-called unit, or standard of population for the districts, is suffi- 
cient evidence that the States have not regarded conformity to the 
unit, even to a measurable degree, as a constitutional requirement. 
But in connection with the suggestion that the population in my 
district is so far below the standard, is so flagrant a departure from 
the unit that the act of 1908 is stamped upon its face with illegality 
and ought to be avoided instanter, I wish to cite you again to the 
case in which a contention of this character, upon a far stronger 
and more compelling state of facts, was disregarded by the House. 
This is the case of Davidson v. Gilbert, which is in all respects on 
fours with the case in hand. It would be difficult to conceive a 
stronger authority for a portion of my contentions than this case. 
In all the elements of outrage, so called, the Kentucky gerrymander 
easily distanced the comparatively mild performance afforded by 
the Virginia statute. 

The Eighth Kentucky District was a Republican district con- 
verted into a Democratic district by the Kentucky act. This act 
by removing a large Republican county from that district reduced 
its population to 143,000, thus bringing it over 17,000 below the 
present population of my district. A Democrat was elected in the 
new district, and his seat was contested before a Republican House 
by his defeated Republican opponent. Upon this state of facts, the 
committee denied the right of Congress to interfere, under the 
constitution, and then conceding pro arguendo the power to inter- 
fere, advised against interference in the most forcible terms. 

Mr. KoRBLY. If I understand you, in that case the departure , 
from the unit was greater than in your case. 



PARSONS VS. SAUNDERS. 127 

Mr. Saunders. Iminensely greater. According to the record, the 
Eighth Kentucky District has a i)opulation of 143,000, as against a 
po])uhition of 160,000 in my district, showing a difference of 17,000 
in my favor. The above facts were in the knowledge of the commit- 
tee wliich heard and reported on the case. 

Mr. Nelson on yesterday asked me a question which 1 would like 
to answer a little further this morning. It was a pertinent (piestion, 
and proper to be asked. He asked me how I would take the rule 
of the cases of Wise v. Bigger, Carter v. hive, and the other like 
cases, and make a practical api)lication of it. This practical appli- 
cation is not difficult. I would use the facts of the decided cases as 
a sort of measuring rod. The courts announced in those cases that 
they would void any apportionment which w-as so outrageous that 
it could be fairly styled a nullity. Hence, the a])portionments which 
they sustained evidently do not fall in that class. We know at least 
what are not nullities. There is no indication in tlie opinions that 
the apportionments under consideration apj^roaclied the danger 
line. Hence, it is a reasonable inference that these courts, with a 
strongly indicated objection to interfering with the legislative dis- 
cretion, would sustain' ap])ortionments even more unequal and un- 
fair than those under review. W^e know the facts of the decided 
cases, and com])aring them with the facts of the Virginia apportion- 
ment, it is a fair conclusion that whatever the statute of 1908 may 
be as a gerrymander it is far from being a nullity. 

The facts in Carter v. Rice presented a much stronger case for the 
complainants than the facts of this case in behalf of contestant. 
The New York constitution closely resembles ours, and the cited 
details of the apportionment in issue shoAved a violent departure 
from its requirements. 

Mr. Nei,son. That was simply decided, was it not, on the question, 
first, they assumed jurisdiction, and then they said the legislature 
had not overstepped the constitutional discretion? 

Mr. Sauxders. Yes; that is what they did. They assumed juris- 
diction ami then, after saying in substance that it was a pretty rank 
apportionment, they declined to interfere on the ground that bad as 
it was they could n(^t say that there was no apportionment at all. 

Mr. Nelson. I understand, if I follow you correctly, that you hold 
that in Virginia, under the decision of that court, they will not look 
into this matter at all, because they would have to exercise a political 
power with which the court has nothing to do ? 

Mr. Sat^nders. No; T do not say exactly that. I say that our 
court has stated the principle of noninterference with legislative dis- 
cretion more strongly than any other court. Yet, pushed to an 
ultimate analysis, if an act was passed in our State which coidd be 
fairly said to be no ap{)ortionment, I belie a'c our court would inter- 
fere to avoid it; but the Virginia court states in the strongest possible 
terms its indisposition to interfere with this exercise of legislative 
discretion. 

Again, I think that the question that was put to me might l)e 
answered in another way. I would say that pursuant to these cases 
an apportionment would stand so long as the comments on the 
same would be of the following character: "Well, that is a bad 
apportionment," or "It is unfair, unjust, and unequal," or "It is a 



128 • PAESONS VS. SAUNDERS. 

gerrymander," or "It was done for political and party purposes and 
is utterly indefensible." So long as the comments take this form, 
courts (like Carter v. Rice) would decline to interfere, preferring the 
•mischief of political apportionments to the evil of judicial interfer- 
ence. So long as it can be said of a district that it includes a con- 
siderable body of inhabitants and that the successive coimties are 
contiguous, though the outline of the whole may be strikingly irreg- 
ular, that district is an exercise of legislative discretion, of political 
discretion, as the Virginia court states the proposition, and must be 
allowed to stand. 

No one looking at the map of the Virginia districts, as the same 
appear in the directory, and comparing them with the districts of 
other States, even if the shape of the fifth district is criticised, can 
be unmindful of the fact that all of our districts are of considerable 
size. No one upon such an inspection, with actual knowledge of the 
population of the latter district and its relation to the population 
of the other districts, could say that the apportionment of Virginia 
into districts was a nullity, that there had been no apportionment 
at all. Doubtless a variety of apportionments, far different in detail 
and conceivably an improvement upon the present apportionment, 
could be made in Virginia, all of them well within the constitutional 
power of the legislature; but these apportionments might all be 
subject to the same criticisms which are level?d at the present act. 
Still they would be apportionments and not nullities. 

Mr. Nelson. If I understand, you concede the jurisdiction of 
Congress, and you also concede their right to lay down the consti- 
tutional requirements, and to say whether or not the discretion of 
the legislature has been overste})ped, and that in this case, therefore, 
\ye would have the right to look into it and say whether or not there 
had been such a gross violation as to make the act a nullity. 

Mr. Saunders. Certainly the committee would have the right to 
look into the case, but it is quite another matter whether they would 
interfere. As a part of your inquiry you could look to the map of 
the Virginia districts and compare them with the districts in other 
States. If upon comparison you ascertain that the other States 
have districts in the contemplation of the constitution, it would be 
difficult for the committee to say that the Virginia apportionment 
was a nullity. 

So long as the Virginia districts resemble in a general way the dis- 
tricts of other States, how can 3'ou say there has been no apportion- 
ment in tliat State ? Until 3^ou have reached the point that you can 
affirm in positive terms, upon an inspection of our districts, that they 
are not districts at all, that as compared with the standards afforded 
in other States they are nullities, you are far short of legal authority 
to avoid the act of 1908. I say legal authority to avoid, for I pre- 
sume that this committee, in construing the constitution of Virginia, 
will adopt the construction furnished by our court of last resort. 

Mr. Chairman, I have had in mind, for further answer, the ques- 
tion when an apportionment, under the principle of cases like Carter 
V. Rice, would cease to be merely a vicious and unholy gerrymander 
and become a nullity. The dividing line is incapable of establish- 
ment, but it is evident from the terms in which the principle is stated 
that it is a long road through every variety of bad and unjust ap])or- 
tionments before a nullitv is reached. 



PARSONS VS. SAUNDERS. 129 

In Vir<:;inia a court is empowered to set asitle the verdict of a jury 
whenever the evidence which supports it, in the judgment of the court, 
may be fairly styled "no evidence." It is not sufficient for that evi- 
dence to be merely inadequate or insufficient, in the court's opinion, 
to justify interference. 

Under the operation of this rule many verdicts are severelv criti- 
cised, but comj)arativ(^ly few are set asido. The courts content them- 
selves with sayino: either in terms that the verdicts are supported by 
insuflicient evidence or else are not such verdicts as they w^ould have 
rendered if the cases had been submitted to them for decision. In 
these cases, as in tJie apportionment cases, mere dissatisfaction wdth 
what has been done, how^ever stroncdy it may be felt or expressed. 
is not sufhcipnt to justify interference. 

I will now take up the question of contiguity of the counties in 
the fifth district. Our friend Governor Monta^Tue evidently con- 
founded continuity anrj contiguity. He seemed to think if oiie had 
to go around a mountain range to get from one county into another, 
that the counties were not contiguous. Two counties might lie 
broadside for a hundred miles, separated by an impassable mountain 
range. Still th.ey would be contiguous. The fact of contiguity, 
would not be affected by the intervening barrier to easy communica- 
tion. * 

Why is the formation of a district unconstitutional because the 
most convenient road from one county to another in the same dis- 
trict ])asses through a county in another district? What difference 
does this make? 1 notice that contestant has taken evidence to 
show that in order to go from Patrick County into Carroll County it 
wouhl be necessaiy to go through Floyd County, and this in the face of 
the fact that Patrick and (\irroll join for many miles, as will be seen 
by consulting the map. It is not my recollection that in going from 
Patrick into Carroll it is necessary to pass through Floyd, and I have 
often traveled that road. I have the postal ma]) here, and the com- 
mittee will note that if this road touches Floyd at all it is only to the 
most insignificant extent. It looks as if it might be the dividing line 
between the counties, though it may run through a corner of Floyd 
for an inconsiderable distance. Thus you can see that the suggestion 
that the highway from Patrick to Carroll passes through Floyd pos- 
sesses no significance. But what if it traversed the entire county of 
Floyd ? There are many districts in the United States in which the 
most speedy and convenient mode of access from one section of the 
same to another is through a second district. Look, for instance, at 
the Tw^enty-third Illinois district. In order to get from one side of 
the district to the other, say from Wabash County to JefTerson County, 
a traveler would have to go across Edwards and Wayne, in the 
Twenty-fourth district, or else have to travel around Robin Hood's 
barn to reach the same destination and keep in the Tw^enty-third 
district. So in the TAventy-second district, an inhabitant of Wash- 
ington C'oimty w^ould find the tlirect road to Bond through Clinton, 
w4iich is in the Twenty-third. It is a new ])rinciple of constitution- 
ahty that districts must be so constructed that the most convenient 
roads from one section of the same district to another must be con- 
fined to the district. I file the maps of Pennsylvania, Alabama, 
Illinois, and West Virginia in this connection. 

38069—10 9 



130 PAKSONS VS. SAUNDEES. 

They will be found in the Congressional Directory for January, 1910. 
On yesterday the chairman of the committee called Governor Mon- 
tague's attention to a considerable disparity in population between 
the congressional districts of one of the States, I think it was his 
own, and asked him what he would recommend to be done or what 
course was proper to be pursued on the part of Congress in such a 
situation. What was his answer? He hesitated a little, as if he 
realized that the inquiry opened up a large situation, but having 
taken a position which involved a certain logical sequence, he recog- 
nized that he had to go forward to be consistent, so he replied: "I 
do not know whose toes I am treading on, but the case suggested, 
according to the rule I have laid down, of conformity to the unit, 
requires action on the part of Congress." According to that conten- 
tion, the district represented hj the chairman is an unconstitutional 
district to-day, because it is a greater departure from the population 
unit than the Fifth Virginia. It is a smaller district. So with respect 
to numberless districts in other States. They call loudly for rectifica- 
tion. Does anyone suppose that these differences of population can 
not be rectified by the legislatures of the several States if they are 
imperatively required to construct the districts so that each one will 
represent the closest possible approach to the unit of population ? No 
one will deny that this can be done ; but is Congress ready to impose 
this requirement ? Is Congress prepared to avoid all the districts in 
which gross disparities exist, disparities far greater than are found in 
Virginia ? If not, why should my district and my State be selected 
for exclusive punishment? I can not understand the proposition 
that my district would have been a constitutional creation if estab- 
lished in its present form by the act of 1906, but is an unconstitutional 
gerrymander under the act of 1908. I suppose it is a sort of applica- 
tion of the principle that you can not take two bites at a cherry. 

Now, one further proposition. I stated heretofore that the ele- 
ment of party advantage is never absent from congressional appor- 
tionments; but so long as the lawmaking bodies keep within their 
constitutional authority this element does not furnish ground of 
avoidance. Governor Montague has rested his case on a question of 
power, and I have undertaken to meet him on that ground. I am 
perfectly willing to admit, as a consequence of that contention, that 
when contestant and his friends secure control of Virginia, as they 
may readily do in the course of years if their principles appeal to our 
people, another rearrangement of districts will be made in the State, 
which will be fully as constitutional as the present one. In making 
that apportionment the winners will not be unmindful of party advan- 
tage. When that takes place we will submit our grievances to that 
supreme tribunal of the State, the people of Virginia. Has the Con- 
gress of the United States exhibited any unwillingness to perpetrate 
a gerrymander when opportunity offered ? Take the case of Okla- 
homa. The enabling act of that State, by some mere chance, shall 
we say, established a most scientific arrangement of the districts, with 
large disparities of population. In addition, the counties were so 
intelligently grouped that in one district the Democratic majority was 
about 25,000. The Fifth Oklahoma District has a population of 
315,000, and the second a population of 225,000; difference, 90,000. 
Will Congress undertake to forbid the States to exercise an authority 
which it exercises to the limit when the opportunity is presented ? 



PARSONS VS. SAUNDERS. 131 

If gerrymandering by the States is an evil that calls for remedy, is 
Congress the body to furnish that remedy'!? What guaranty is 
aQ'orded that the remedy will not be worse than the disease ? But if 
(Congress is to undertake this role, the work should be in a large way 
and not by tentative and capricious applications of the corrective 
principle. Congress should announce to the States as a whole that 
they must rearrange their districts in absolute conformity to the rule 
of compactness and population, and unless this is done Congress 
itself will establish tlie districts in every State and so arrange them 
that they will be free from ineciualities and irregularities, whether of 
population or of outline. This would be a grave departure from the 
existing policy of acquiescence in tlie apportionments established 
by the States and precisely contrary to the course recommended by 
Davidson v. Gilbert, but at least it would be an effort to make a gen- 
eral application of a universal rule. Until this is done it would cer- 
tainly be a hardship to select for punishment the arrangement of 
some particular State that is not as bad as the existing arrangements 
in many other States. But would the problem of just apportionments 
be solved by displacing the States in the exercise of this authority 
and lodging it exclusively in Congress ? 

Senator Thurston asked me on yesterday whether I conceded the 
right of Congress to establish the districts in the States and fix their 
delimitations. My reply was that the power lias been asserted, has 
been gravely ((uestioned, and so far as I am aware has never been 
authoritatively settled. But I submit to the committee that con- 
ceding that Congress has the right to arrange the districts within the 
States, it has never done this, so that the apportionment act is 
merely commendatory. Hence the states exercise the untrammeled 
right to make apportionments, and it is not competent to one division 
of Congress to seek by indirection to exercise the power to control 
the make-up of districts within the States. If it is a sound contention 
that tlie Members of Congress represent the States and not the dis- 
tricts, then unquestionably the make-up of the districts is an imma- 
terial matter. I wish to call the attention of the committee to the 
case of Pool v. Skinner, wdiich is the latest case, so far as I am aware, 
to announce the position that the constitution seems to regard the 
Members of the House as representatives of the States rather than of 
the districts. I have not undertaken in any connected way to estab- 
lish the proposition that Congress does not possess the power to estab- 
lish the districts within the States as a supreme exercise of constitu- 
tional authority, but have been content in that connection to refer 
the committee to the case of Davidson v. Gilbert, which denies that 
such a power exists. Here is what Pool v. Skinner says: 

The Constitution seems to treat Members of the House as Representatives of the 
States, and not of districts merely; and the States have the right to determine what 
portion of their people shall choose these Representatives, subject only to the last 
apportionment act of Congress. (Hines, vol. 1, p. 175.) 

The apportionment act of 1901, in allowing the States to elect Rep- 
resentatives at large throughout the entire census period is a quasi 
recognition of the principle that the Representatives represent the 
State and not the segregated districts. If it is a constitutional right 
to recjuire that the States should apportion themselves into districts, 
why is it that Congress has not imperatively required Colorado and 
Connecticut to make their apportionments, so as to elect all of their 



132 PAHSONS vs. SAUNDERS. 

Members by districts ? Look to Connecticut, where the Member at 
large has a constituency of over 900,000, while the population of an- 
other district is a little over 129,000. Why is such an inequality per- 
mitted by Congress, if it is vital that the population of the districts 
should approach as nearly as possible to the unit ? Look to the State 
of Colorado, with a population of 240,000 in one district and 540,000 
in another, a repetition of the inequality that exists in Connecticut. 
Why are these inequalities permitted ? The statute prescribes that 
the Members shall be elected by districts. Wliy is a saving clause in- 
serted for the benefit of States which can as readily make the necessary 
apportionments as other States ? 

Mr. Thurston. That is in strict accordance with the act of Con- 
gress. 

Mr. Saunders. That may be, but why should Congress permit one 
State or States to have Representatives at large, and at the same time 
undertake to interfere with the details of apportionments in other 
States ? The above States have had ample time within which to make 
the necessary apportionments. 

Mr. Thurston. They have not done so. 
Mr. Saunders. They ought to. 

Mr. Thurston. Congress says that until they do it, the extra Mem- 
ber shall be elected by the State at large. 

Mr. Nelson. They may be violating it according to the last census, 
but did not they change the statute so as to escape that ? 

Mr. Saunders. Possibly they did. But Congress should either 
lay down the law to the States, and prescribe the districts by one 
sweeping and inclusive act, or else continue the present policy of 
noninterference which has endured for over one hundred years. 
Now, I think, Mr. Chairman, that is all I wish to say in this connec- 
tion. I suppose that Governor Montague was retained to argue this 
case because he vetoed the act of 1902. If Governor Montague did 
not approve that act, which was a very different one from the act in 
issue, then it was certainly within his power to veto it, but I wish to 
remind you that the Governor's relation to an act in contemplation 
which is submitted to him for approval is very different from the 
attitude of this committee toward a completed act. So long as the 
act was in an inchoate state, so to say, the Governor very properly 
could have in mind a number of things which do not enter into the 
considerations of the committee, which is dealing with the present 
constitutionality of a completed act. If the Governor thought the 
act submitted was unfair or unjust, or if its motives and purposes 
did not appeal to him, it was perfectly competent for him to veto it. 
But if Governor Montague considered that the act of 1902 was a 
proper subject of veto, it is evident that Governor Swanson, a lawyer, 
did not entertain that opinion of the act of 1908, for he signed it, 
thereby rendering it a completed exercise of legislative discretion. 
If it is a question of citing governors as authority, I will go further. 
Not only do I oppose the opinion of Governor Swanson on the act of 
1908, to the opinion of Governor Montague, who had no occasion to 
pass on it, but I will throw in the balance the opinion of Governor 
Mann, now governor of Virginia, and one of the best lawj^ers in the 
State, who not only reported this bill from his committee, but defended 
its constitutionality on the floor of the senate, and voted for it on its 
passage. But all of this may be fairly styled a sort of side issue. 



PAESONS VS. SAUNDERS. 133 

The Chairman. Do you know whether the people in Floyd Count}^ 
requested to be taken out of tlie FUth Cono:ressional District ? 

Mr. Saunders. I do not suppose that tliey did so request any 
more than the })eople in Davidson's district requested to be trans- 
ferred to another district. I have no idea that they did. It is a 
rare occurrence that the counties ask to be transferred from one dis- 
trict to another. 

The Cir airman. Do you think as a matter of justice that congres- 
sional districts ought to be formed solely for political purposes ? 

Mr. Saunders. As a moral proposition, no, I do not. But it is 
not conceded that this transfer was exclusively for political consid- 
erations, though if it was that would not affect the question of 
power. 

The Chairman. Were there are any reasons assigned at the time 
of this change ? 

Mr. Saunders. If I could present to this committee the actual 
conditions in that district, I do not doubt that I could satisfy you 
that there were good reasons for the act, though I do not deny that 
political considerations entered into the legislative motives for the 
change. But no evidence was, or could be, taken on that line. If 
this matter had been submitted to the courts of Virginia, they would 
not have entered upon an inquiry into the motives of the legislature. 

This committee, in the view of contestant, and I agree with him, 
stands in the relation of a court to this inquiry. Hence, it would not 
be proper to take evidence as to the motives of the general assembly 
in passing the act. 

The Chairman. Why not '( 

Mr. Saunders. Because it would inevitably run into an inquiry 
into political conditions, which would be insisted upon by contestant 
as the real impelling motive. 

The Chairman. I am not going into the political view of it. Wliy 
can you not go into the question as to why any portion of a particular 
district ought to be taken out of that particular district ? 

Mr. Saunders. vSo far as the county of Floyd is concerned, it was 
in the interest of that county, in a business way, to be transferred to 
the sixth district. 

The Chairman. To the Sixth tlistrict ? 

Mr. Saunders. Yes; because all her commercial interests are with 
that district and all her trade lines run in that direction. It trades 
with Christiansburg and Roanoke, which are in the Sixth District. 
It reaches the railroad in that direction, while it is cut off from Frank- 
lin by high mountains. An inspection of the map will show all this 
to be true. 

Mr. Nelson. A community of interest ? 

Mr. Saunders. Yes. But while not evading any issue that may 
be raised, I did not expect to take up what may be called the moral 
features of the case. They have not been considered relevant in 
other cases as a determining factor in arriving at a conclusion on the 
constitutional questions presented. 

Mr. Nelson. I should think it would be very much in point. 

Mr. Saunders. If you want me to take up that feature of the case 
I will do so. But I will have to state a hypothetical case, as there is 
no eviilence on this line in the record. 



134 PARSONS VS. SAUNDERS. 

Mr. Nelson. The charge is this — a gerrymander for pohtical pur- 
poses. 

Mr. Saunders. Yes; that is charged. 

Mr. Nelson. If there are other good purposes that could be set 
forth that, it appears to me, would tend in some way to meet that. 

Mr. Saunders. It might be conceded that the change was largely 
due to political considerations. It might even be conceded that it 
was entirely due to political considerations, though that is not con- 
ceded. But, if so, what difference would it make if Virginia had 
authoritj^ to pass the act ? The arrangements of congressional 
districts by a party legislature are generally related to political pur- 
poses, but political purposes are not necessarily vicious or immoral 
purposes. I might admit that this was a gerrymander pure and 
simple without altering the strength of my position. 

Mr. Nelson. Do you wish to take that position ? 

Mr. Saunders. It is not necessary for me to take that position. 

Mr. Nelson. I wish to ask this question in order to understand 
your position. Do you justify gerrymanders on the ground that 
you can not meet them — that is, that Congress can not meet them ? 

Mr. Saunders. It is not a question of justifying gerrymanders on 
moral grounds, but of determining whether the State possesses the 
constitutional authority to effect gerrymanders. There is the further 
question whether Congress should interfere with the States in the 
construction of their districts, conceding that it possesses the right 
of interference. It is a grave question, admitting all that may be 
said against gerrymanders, whether the gerrymanders of the States^ 
which are severally under different political control, are not prefer- 
able to such a gerrymander as Congress could effect, one that would 
be coextensive with the limits of our country. As Davidson v. Gil-t 
bert points out, the present system at least works out a sort of rough 
equality. An excess of inequality in one State is counterbalanced 
by a like excess in a different direction in another. The legislation 
of 1908 was fully considered in the Virginia legislature, and while 
the inevitable political motive was present there were other consider- 
ations. A legislature considers many things with which a court has 
nothing to do and which it can never know. This was fully pointed 
out in the dissenting opinion in the Wisconsin case. 

The legislative discretion is a wide one. They may consider things such as com- 
munity of interest, facility of communication, the general topography, the rapidity 
with which population is increasing, and many other things with which the court has 
nothing to do and which it can not know. This court can not take evidence as to these 
outside considerations. (83 Wis., 169.) 

This is what the court says, and yet it is insisted that I should 
take up these outside matters before this committee, which is sitting 
as a court. Further: 

This court can not take evidence as to these outside considerations, but I have no 
doubt of the power of the legislature to do so in the exercise of its discretion. 

Governor MontagTie insists that this case should be considered in 
the light of the judicial authorities. Agreed. But our friend seems 
to forget that on the question of interference with legislative appor- 
tionments there are more authorities in favor of my view than there 
are to be found on his side, and that one of these decisions is from 
our State, interpreting our own constitution on one of the precise 
points in issue. Apart from the other persuasive authorities, is he 



PARSONS VS. SAUNDERS. 135 

unwilling to follow his own court or to recognize its controlling force 
in the interpretation of the laws of Virginia ? In apparent ignorance 
that the supreme court of Virginia had spoken on this subject, con- 
testant announced in his brief on page 11 that Congress is the court 
in this matter. But when a federal court construes the laws of a 
State, whether organic or statutory, it follows the construction of 
the laws announced by the highest court of that State. Looking, 
therefore, to the law of 1908 from a judicial standpoint, this committee 
will presume that the law was passed under proper motives, which 
are neither to be impugned nor assailed. All the presumptions are 
in favor of the act. Ihere are certain established rules which fix 
and tletermine the attitude of courts when an inquiry is threatened 
into legislative motives or an assault is made upon legislative enact- 
ments. 

Oourty can not inquire into the motives which may have moved a legislature to 
enact a statute, making an apportionment of senatorial districts in the manner in which 
it was made, such motives being presumed to be patriotic. (155 111., 541.) 

Courts can not inquire into legislative motives. They must 
assume that legislative discretion has been properly exercised. 
(Id., 455.) A law will be upheld unless its unconstitutionality is so 
clear as to leave doubt on the subject. (Cooley's Constitutional 
Limitations, 216.) It must be assumed by the courts that the legis- 
lative discretion has been. properly exercised. (Coole}'^, p. 220.) If 
any special finding was necessary to justify" the passage of a particular 
act, it would seem that the passage of the act itself might be held to 
be equivalent to such finding. (Cooley, id., and notes.) We are 
not at liberty to inqidre into the motives of the legislature. (7 Wal- 
lace, 506.) Before a court may determine that an act of the legisla- 
ture is unconstitutional and void, a case must be presented in which 
there is no reasonable tloubt. ( 135 N. Y., 473.) 

Mr. Tou Velle. Will it bother you if I ask you a question? 

Mr. Saunders. Not at all. 

Mr. Tou Velle. Wlien a county is taken out of a district and 
the district is still left, practically, even between the two predominant 
parties, would you say it was a gerrymander for political purposes ? 

Mr. Saunders. Well, I think the members of the committee can 
very readily answer that question. I leave its determination with 
them. 

The next contention made before this committee is with refcn'cnce 
to the candidate, Elliott Mathew. Contestant asserts that his 
name, though on the ballot, is a nullity. That while it is actually 
and visibly there, it is not there — a case of "now you see it, and now 
you don't" — or, rather, you don't see it, and it isn't there. He 
asserts, further, that if a voter marked off the name of Saunders 
he voted for Parsons, though he failed to mark out the name of 
Mathew; that Mathew was inelioible to hold office in Virginia, 
and therefore he could not be a candidate for Congress. Hence, 
his name on the ballot was a nullity. Qualifications to hold office 
in Virginia is one thing, and qualifications to be a Member of Con- 
gress of the United States is another and very difi'erent thing. How 
can the declarations, either of the organic or statutory laws of a 
State, affect the constitutional qualifications of a man to sit in Con- 
gress ? 1 he constitution of Virginia provides that a man who has 
fought a duel can not hold office in Virginia. Hence, if contestant's 



136 PAESojsrs vs. saunders. 

position that a man who is disqiiahfied to hold office by the con- 
stitution of a State is disquaHfied to sit in Congress is well taken, it 
follows that a man who fought a duel in Virginia twenty years ago 
is thereby incapacitated to run for Congress, and if through a mis- 
take of the secretary of the Commonwealth his name is printed as 
a candidate that name may be treated as a nullity, with all the con- 
sequences that would thereby ensue. 

The Chairman. Suppose Mathew had a majority in that district 
and you were here contesting his right to a seat here. Don't you 
think Congress would give you the seat ? 

Mr. Saunders. Not necessarily. For many years one of the dis- 
tricts in the State of Virginia was represented by an illustrious gen- 
tleman 

The Chairman. Suppose you were here as a contestant, having had 
the next highest number of votes, and Mr. Mathew under the law 
of your State could not be elected to Congress because he was not 
qualified under the laws of the State, but he obtained a majority of the 
votes cast in the district. You came up here contesting his right to 
a seat for the reasoai that he was not qualified under the laws of your 
State to be elected to Congress, and the further fact that he was not 
qualified because he was adjudged a lunatic and is still adjudged a 
lunatic, and you came up here and contested his right to the seat. 
He was in an insane asylum and could not be here. He was repre- 
sented by Senator Thurston as counsel and therefore was here pre- 
senting his claim, and you were here as a contestant. Don't you 
think that this committee would recommend to Congress that you be 
seated ? 

Mr. Saunders. There are two difficulties in the way. In the first 
place if they ascertained that he could not take his seat on account of 
disability. Congress has expressly held that the other candidate can 
not be seated. 

Mr. Nelson. That is squarely the rule. 

The Chairman. Suppose he was ineligible to office ? 

Mr. Saunders. That is the very thing that is claimed, that he has 
a disqualification that makes him ineligible. 

The Chairman. And suppose you were taking the same position 
that Mr. Parsons occupies in this case, that his name was not on the 
ballot as a matter of fact, that it was a nullity in law just the sa^me as 
the act of a dead man; you are contesting on the ground his name 
was not on the ballot and he did not get an}^ votes. You are here 
asking to be seated in Congress. 

Mr. Saunders. If my opponent was unseated on the ground of 
disqualification, on the ground that he was not entitled to his seat, 
that would not give me the seat. 

The Chairman. I am putting it on the ground that the gentlemen 
here are putting their claims, that this man's name is not on the 
ballot, and therefore an^" vote cast for Mr. Mathew was a nullity and 
ought not to be counted. 

Mr. Saunders. If a man's name was not on a ballot in any real 
sense, that would present another proposition. But take another 
case. Suj)pose the electors of a district write a man's name on the 
ballots and elect him, though a lunatic. What then? 

The Chairman. I do not think tliey could elect him then; he was 
not qualified. 



PARSONS VS. SAUNDERS. 137 

Mr. Saunders. When he came here to assert his chiiin, witli a cer- 
tificate as a Member of Congress, he would be entitletl to a hearing. 
The House vvouhl inquire into his claim. A contest might unseat 
him, but would not seat the contestant. The latter, like Samson, 
might destroy his adversary, but he would be involved in the ruin. 

The Chairman. Unfortunately, he could not come, however. 

Mr. Saunders. One of the districts in Virginia was re])resented for 
years by a lunatic. He was one of the most distinguished Members 
of Congress that we have ever had. Subsequently his will w^as set 
aside by our Supreme Court, on the ground of insanity. 

The Chairman. Was he adjudged a lunatic? 

Mr. Saunders. No; but a judgment of lunacy, so far as this House 
is concerned, would not limit its right to hear and determine. 

Mr. KoRBLY. Would not the very contest raise a question of doubt ? 

Mr. Saunders. Certainly. The House is not barred from inquiry 
b}^ any sort of judgment that may be entered in any State, so far as 
it relates to the qualifications of a Member. 

Mr. Carrico. If the electors should have written Matthews' s name 
on the ballot and it was shown that he was adjudged a lunatic, would 
his name then have been just as much a nullity as if it had been 
printed there ? 

Mr. Saunders. I am very glad that you take that position. If it 
is not a nullity when written, it is not a nullity when it is printed. 
I hope you will stand to that. 

Mr. Thurston. There is this distinction: If an elector writes a 
name on a ballot — if it is that of an infant or a dead man or anything 
else — it is an express disclaimer of his purpose to vote for anybody 
else for that oflice. 

Mr. Saunders. Not necessarily. I will show you that 3^ou are 
mistaken in that. If there was a name on the ballot, and you added 
in writing the name of a lunatic, the ballot would be void under the 
Virginia law. You would not vote for the lunatic, and you would 
not vote for the other candidate. 

Mr. Thurston. That is what I say. 

Mr. Saunders. That is not because one man is a lunatic, but 
because there are two names on the ballot. But according to your 
theory, the name of a lunatic on a ballot is a nullity, and you would 
vote for the other candidate whose name was already there. That 
is the inevitable sequence from your theory. If you hold that a 
lunatic's name is a nullity, whether printed or written, then when 
you add a written nullity to the ballot, nothing is really added. But 
Matthews's name was "on the ballot. It had been impressed by 
physical agencies, so that the voter had to take notice of it. If he 
wanted it off, he was required to use physical agencies to remove it. 

Mr. Thurston. My proposition is, it is not a nullity, because the 
writing in of a lunatic's name together with another namcf which 
is not scratched out does not make it a nullit}'. It is a nullity 
because the wiiting in of another name is an express disclaimer of an 
intention to vote for the printed name on the ballot. 

Mr. Saunders. If the name is a nullity, how can it express an in- 
tention? You can not express an intention by a nulhtv. You can 
not do that. A nullity can not express an intention. It has no 
effect whatever. 



138 PARSONS VS. SAUNDERS. 

The Chairman. It has this effect; it destroys the ballot, and it is 
not a vote. 

Mr. Saunders. But only because a name is added. If the name is 
a nullity, nothing is added. 

The Chairman. In effect it destroys the ballot, by the very fact 
that I write a name on the ballot of a person whose name is not on the 
list. I think, like Mr. Thurston, that is an expression on my part 
that I am not satisfied with either of the candidates on there, and I 
intend to show my dissatisfaction by writing the name of somebody 
else. I know at the time that the vote will go out. 

Mr. Nelson. Are you going to discuss the question of showing the 
intent of the voter ? 

Mr. Saunders. Certainly. 

Mr. Nelson. Then I will not interrupt you now. 

Mr. Saunders. If a voter finds the name of one candidate on his 
ballot, and adds the name of a lunatic, he performs an act of intelligent 
volition. If he leaves two names on his ballot, the law avoids that 
ballot on the ground that no choice has been indicated. If the same 
voter finds three names on his ballot, and scratching out one, leaves 
the other two, he has again performed an act of intelligent volition. 
He must be presumed to have intended to do that which he did. As 
a matter of fact he did not vote. It will be presumed that he did not 
intend to vote. His action indicated that he intended both of the 
unscratched names to remain on his ballot. 

The Chairman. Maybe that counts because fifteen or twenty people 
left the name of Mathew on. They were not satisfied with either 
Parsons or Saundsrs. 

Mr. Saunders. That is the contention which I make and which is 
supported by the ballots themselves, that those voters when they 
maAed out Saunders or Parsons thereby indicated by a positive 
act that they did not want to vote for them, but this act did not indi- 
cate an intention to vote for anyone else. On the contrary, the voters 
indicated an utter indifference toward the remaining candidates by 
leaving two names on the ballot; just as manj^ voters indicated their 
indifference by leaving three names. The committee would reject 
these ballots, even if the statute did not expressly avoid them. 

The Chairman. Here is what I would like to hear you on. What 
is your position in answer to one authority cited here, I think by Gov- 
ernor Montague, where the courts have held that in the case of a man 
who is a lunatic, whatever acts are performed by him are a nullity, 
just the same as the act of a dead man — that it is not any act at all 
and has no legal effect ? What do you say in answer to that ? 

Mr. Saunders. I am going to take that up, as well as other matters 
covered by the questions which have been propounded to me. 

The Chairman. And whether it was a nullity. 

Mr. Saunders. The name was not a nulhty. It was properly on 
the ballot, and the authorities that they cite in relation to the acts of 
a lunatic in matters of contract have no sort of relation to the indi- 
vidual acts of a lunatic affecting only himself and not designed to 
create an obligation to another party. 

You can not sa}?- that if a lunatic should arrange for the printing 
and distribution of his own ballots, as was formerly done in my State 
by the candidates, such ballots would be void, merely because they 
carried the name of a lunatic. One of the Members of Congress from 



PAKSONS VS. SAUNDERS. 139 

Virginia for many years had a lunatic to run against him each time 
that he made a race. The same lunatic, I think, w as a candidate for 
governor in my State. Were this man's ballots void per se, merely 
because a lunatic paid for their printing and distribution ? A lunatic 
could not enter into a binding contract with a printer on which the 
printer could recover, but if a printer printed his ballots pursuant to 
contract and was paid therefor by the kmatic, the ballots are a 
physical fact. They are not a nullity. 

Mr. Nelson. Here are 15 ballots, I think it was 15 ballots, cast for 
Matliew, that evince a purpose on the part of 15 men not to vote 
for either Parsons or Saunders. How are we to know in settling 
these ballots whether those who voted for Saunders and left 
Mathew and Parsons out did not overlook striking Parsons as well 
as Mathew out? 

Mr. Saunders. Yes. 

Mr. Nelson. I mean that tliey did not have the same purpose in 
mind for not voting for either. 

Mr. Saunders. That may have been; so it is all a matter of guess- 
work. 

Mr. Nelson. We would have to guess, would we not? 

Mr. Saunders. Yes, if you undertook to arrive at the intention of 
the voter apart from what he actually did to indicate his intention. 
But our statute provides that when the names of two candidates for 
the same oflice are left on the ballot that ballot is void. 

The Virginia law does not permit any guessing to be done. This 
House has frequently decided that when a ballot is required to be pre- 
pared in a particular way, in order for the same to be a legal ballot, 
pursuant to the laws of a State, whatever the requirements of those 
laws may be, whether reasonable or unreasonable, those requirements 
must be complied with or the ballot will be void. In other words, the 
House will follow the local law. I have abundant authority for that 
proposition. 

Now, I will take u}) another feature of this case. I wish to pro- 
pound to my o])])onent this inquiry. How can the provisions of the 
organic law of Virginia prescribe (Hsqualifications for membership in 
Congress ? How can Virginia undertake to say who shall and who 
shall not be eligible to a body which is invested by the paramount 
law with the exclusive right to pass on the qualifications and returns 
of its members ? The provisions of our constitution must be con- 
strued to relate to state ofljcials, for the qualifications of a member of 
Congress are beyond its purview. Is not that a sound proposition? 
If it is not, why not ? The State of Virginia })rovides that a man who 
has fought a duel shall not hold office in that State. This provision 
is in the same section of the constitution wliich relates to lunatics, 
and if it is effective for the one class it will be effective for the other. 
Would any member of this committee undertake to say that a man 
who had fought a duel in Virginia would thereby be rendered ineligi- 
ble to a seat in this body? This House is indifferent to disqualifica- 
tions sought to be established by the States. The Constitution has 
fixed the qualifications of a member of the House of Representatives. 
Here they are: 

No person shall be a Representative who shall not have attained to the age of 
twenty-five years, and been seven years a citizen of the United States, and who shall 
not, when elected, be an inhabitant of that State in which he shall be chosen. (Art. 
1, sec. 2.) 



1-iO PAESOXS VS. SAUXDEES. 

And that is all. It is a question iinnecessarv to be discussed in 
this connection, whether Congress itself can add to these disqualifica- 
tions. In respect to crime, it has been held that Congress could 
provide additional discpalifications. 

^Ir. KoRBLT. It is not even necessary that a candidate for Con- 
gress should Hve in the district that elects him . 

^Ir. Sauxdees. Oh, no. In the famous Brigham Roberts case 
it was held that Congress could estabhsh disciuahfications, and as a 
residt of that opinion on the part of the House, though it was stoutly 
maintained that ^h\ Roberts was entitled to his" seat under the 
Constitution, he was excluded by an overwhelming vote. But 
there was weighty authority on the side of those who maintained 
that he was entitled to be seated. However, it is no longer an open 
question that the States can not impose disquahfications on mem- 
bership in Congress. While the statement of qualifications in the 
Constitution is in the negative form it has been held to be equivalent 
to the affirmative proposition that any man who has those qualifi- 
cations can not be disqualified by the State so as to prevent his be- 
coming a Member of the Congress of the United States. 

Let me submit to the committee volume 1 of Hines, which is very 
much in point on this matter, and wiU ehminate from this case any 
Cj[uestion of disqualification. (See p. 384). Mark you, Mr. Chairman, 
I do not wish to be understood as saving that a lunatic has an abso- 
lute right to sit in Congress and that the House is powerless to deal 
with such a case. I merely say that his case is one that the House 
must deal with on proper inciuiry. So far as the State of Virginia and 
the provisions of her organic law are concerned, the disqualifications 
for lunacy and for fighting a duel are put on the same footing and 
included in the same section. If the one must be left for the deter- 
mination of the House on a contest, so must the other. 

The Chaiemax. TVhat would you say as to the right of a lunatic 
to have his name printed on a baUot under your Virginia law ? 

Mr. Sauxdees. He has a right to have it done, because the law 
of the State can not hinder him from taking the steps which will 
enable him in case of election to present his claims to the House 
and have a final determination of his qualifications. The State is 
empowered to fix the qualifications of the electors who vote for a 
Member of Congress, but not to prescribe quahfications for the can- 
didate himself or hinder him from being a candidate. 

Take again the case of an admitted felon who ofl'ers as a candidate 
for Congress and forwards a proper notice. Could the secretary of 
the Commonwealth refuse to put his name on the ballot ? 

]\Ir. Caeeico. If you can not make any legal contracts ? 

]\Ir. Saux'Dees. It is not a question of making legal contracts. 

^Ir. Caeeico. How can he serve the secretary of the Common- 
wealth notice of his mtentions to become a candidate ? 

]\Ir. Saux'DEES. That Cjuestion does not present any difficulty. The 
notice merely informs the secretary of the fact that the man who 
signs it will be a candidate. The law says there shaU be two ^vitnesses 
to the notice. But you must bear in mind that these witnesses are 
not witnesses in the sense of witnesses to a will. They do not decide 
that the man is of sound mind, or as to his mental qualifications, or 
anything of the sort. They simply identify the man, so that a 
fictitious name could not, for political purposes, be sent in. All the 



PARSONS VS. SAUNDERS. 141 

secretary was concerned to know was whether tlie signature was what 
it purported to be, the signature of the man EHiott Mathew. If it 
was his signature, no one can successfully maintain that the signature 
itself is a nullity. 

The Chairman. You say the object is simply identification? 

Mr. Saunders. That is all. The statute is here. I have included 
it in my analysis. 

The Chairman. If that is true, a man ought to be identified, then, 
by some one who knew him. 

Mr. Saunders. He was. 

The Chairman. One witness testified he never saw this man until 
the day he asked him to sign that paper, and did not know he was 
crazy or anything about him. 

Mr. Saunders. That may be true, but the man who signed was 
the man Mathew. There is no doubt of that fact. No question of 
identity is raised. So, if it was Elliott Mathew who sent in a notice 
in conformity with the law of the State, the secretary was not at 
fault in including his name with the other names for the ballot, or 
for refusing to enter ui)on an inquiry into his mental state. 

The constitution provides that "no person shall be a Representa- 
tive wdio shall not have attained the age of twenty-five years and been 
seven years a citizen of the United States, and who shall not, when 
elected, be an inhabitant of that State in which he shall be chosen." 

Mr. Parsons. Suppose he was in the penitentiary at the time in- 
stead of the asylum ? 

Mr. Saunders. Well, suppose he was; but suppose his term would 
expire before the time to take his seat arrived. The mere fact of 
present confinement would not affect his qualifications, though it 
might afford the voters a reason not to vote for him. I believe Wilkes 
was elected to Parliament while he was in jail. If a constituency 
chooses to elect, and the House to receive, a member from the peni- 
tentiary, the organic law of Virginia could not interpose any obstacles. 
Your question illustrates a point that I have sought to make, that the 
disqualification of lunacy, or of felony, must alike be passed on by the 
House. When you consider Mathew as a candidate for Congress, 
you must consider the situation with reference to the Federal Consti- 
tution, and dismiss the constitution of Virginia fi'om your contempla- 
tion. 

Mr. Parsons. It says "any person." 
^ Mr. Saunders. Y^es. 

Mr. Parsons. Suppose a man had never 

Mr. Saunders. I will anticipate your question, and admit that 
there might be a candidacy so preposterous that the secretary of the 
Commonwealth would be justified in rejecting the name. But even 
in such a case, if the secretary published the name, the voter would be 
required to take notice and erase it in order to cast a valid ballot. If 
the King of England should send in his name as a candidate, we will 
all agree that the secretary would not put his name on. But we are 
discussing the case of an adult of good education, who forwarded a 
sufficient notice of his candidacy. It is true that a friend of mine 
informed the secretary that he was a lunatic, but the secretary took 
the position that he was powerless under the law to withhold the 
name, and m this position he was sustained by the opinion of the 
attorney-general. His attitude was certainly not intended to help 



142 PABSONS VS. SAUNDERS. 

me, for the request to exclude Mathew from the ballot was preferred 
by one of my supporters who was so insistent that he carried the 
matter before the attorney-general. Even if Mathew had been 
adjudged a lunatic, that finding was not conclusive on the House, 
Mathew, if elected, would have been entitled to an inquiry from this 
body to ascertain his qualifications and capacity. That was done 
in Senator Niles's case. Hence Mathew had the right to be a candi- 
date. 

Mr. KoRBLY. It would go to show the privileges of the House. 

Mr. Saunders. Certainly. That is what I am getting to. Permit 
me to submit some authority. 

Mr. Howell. Do I understand your position to be that even though 
the secretary of the Commonwealth had had full knowledge and 
information of the character of Elliott Mathew as to his being ad- 
judged insane, that he would then have been compelled or justified 
in placing his name upon the ballot? 

Mr. Saunders. The answer to that query is this: If the secretary 
of the Commonwealth had no authority to pass upon the qualifica- 
tions of a Member of Congress, how could he undertake to anticipate 
the judgment of the House, and say that Mathew could not be a 
Member of this body ? Your question presents no difficulty. The 
secretary had no more right, per se, to exclude a lunatic ft"om the 
ballot than he did to exclude a felon or a duelist. 

Mr. Howell. What is there in the Constitution to prevent a woman 
sitting as a Member of Congress if Congress should admit her ? 

jMr. Saunders. The papers state that a woman ma}^ be sent to 
Congress from the State of Colorado. But I wish to insist upon my 
query. Suppose a duelist forwarded a notice to the secretary that 
he would be a candidate for Congress, and his opponent by the next 
mail informed the secretary that he was disqualified by the consti- 
tution of Virginia. What would be done in the premises? What 
would or could the secretary do? What court, state or federal, 
could undertake to say to this man: You shall not be a candidate 
for Congress; your name shall not go on the ballot. Or to say to 
the constituency: You shall not be. allowed to vote for him. In our 
opinion he. is disqualified. 

Mr. KoRBLY. Suppose you turn the case the other way, and the 
secretary had refused to put his name on the ballot, could he have 
been compelled by legal process to put him on ? 

Mr. Saunders. Certainly. There w^as no political advantage in 
the secretary's contemplation, because Democrats were asking him 
to have Mathew eliminated. The only movement to that effect 
emanated from Democrats who w^ere aware of his alleged insanity, 
and communicated that fact to the secretary of the Commonwealth, 
anil later to the highest legal officer of the State. 

Mr. Nelson. I fail to see why a Democrat would not be as apt to 
vote wrong as a Repubhcan. 

Mr. Saunders. Certainly. There was no reason for any Democrat 
to encourage Mathew to become a candidate, though the notice 
alleges that his candidacy was the product of a Democratic con- 
spiracy. This is one of ^ the many charges of the notice which 
contestant has failed to establish. 

Mr. Carrioo. You say the secretary of the Commonwealth has no 
discretion in such matters ? 



PARSONS VS. SAUNDERS. 143 

Mr. vSai'NUERs. Witli respect to a case that in tlie result must 
be passed on by the House of Rei)resentatives when any real question 
is involved, I afTirm that lie has no discretion — that he is a purely 
ministerial officer. 

Mr. Carrico. Then you say Congress has never decided a woman 
can sit in the Congress of the United States 

Mr. Saunders. I understand the voters propose to send a woman 
from Color ail o 

Mr. Carrico. Still you say the secretary of the commonwealth 
would have discretion and would not place the woman's name on the 
ticket. 

Mr. Saunders. I do not think I said that. 1 say that there are 
some cases, never likely to arise, but in which, should they arise, the 
secretary, hy a sort of tour de force, woidd withhold the names 
from the ballot. If the secretary was assured that one of the names 
was that of a baby two weeks old, or of the Shah of Persia, he 
w^ould doubtless reject them. The powers of the secretary are dis- 
cussed in the Record in the deposition of Attorney-General Anderson. 
If a felon, or duellist, sent in his name, what do 3^on think the secre- 
tary ought to do ? 

Mr. Carrico. I do not think his name sliould go on the ticket. I 
do not think he is eligible to office. 

Mr. Nelson. Would not that be a bad ])recedent to establish as to 
who should and should not be qualified for election to Congress? 

Mr. Saunders. It would be a fatal thing to confer such a power 
u])on the States, or upon any functionary of the States. Congress 
has distinctlv ruled that a State can not impose disqualifications 
upon a Member of Congress. It would be in derogation of the con- 
stitutional riglits and functions of this House for a court in Virginia 
to undertake to keep citizens from being candidates for Congress 
on the groimd that they are disqualified to hold office by virtue of 
the Virginia constitution or laws. 

Mr. Howell. I understand the point to be that a lunatic can not 
declare his intention to come to Congress. 

Mr. Saunders. "Wliy not ? There is no authority to that effect. 
A lunatic sat in this House, and the people of his district elected him. 
That is within the last ten years. He pleaded insanity to a criminal 
prosecution and was acquitted on that ground. 

Mr. Thurston. That is never held to be evidence of continumg 
insanity except in certain States whose laws ])rovide for commitment. 

Mr. Sattnders. If you put in a plea of insanity, and it is sustained, 
there is a presumption that the insanity will continue. 

Mr. Nelson. This man had been adjudged insane from time to 
time, had he not, and then let out again? 

Mr. Saunders. He comes from my county, and as a young man 
was an ambitious fellow. At one time he was a candidate for 
superintendent of schools. Finally he became insane. Doubtless 
he had the disease which Secretary Knox imputed to Glavis, megalo- 
mania, or "bighead," as it is popularly styled. Some years ago he 
was sent to the asylum. At times he improved and was let out on 
furlough. His insanity was recurrent. Wlien his trouble returned 
the authorities would senil for him. During the summer of 190S he 
was at large. Doubtless walked off as he had the opportunity to do, 
and the authorities, knowing he was harmless, made no effort to ap- 



144 PABSONS VS. SAUNDERS. 

prehend him. Wliile at home he became a candidate for Congress 
and in due course sent in his notice. That is the wliole stor^^ 

The Chairman. But he was apprehended ? 

Mr. Saunders. Yes, sir. 

The Chairman. Just after he sent in this letter ? 

Mr. Saunders. Yes, sir. 

The Chairman. And he was put in the asylum and has been con- 
fined there ever since ? 

Mr. Saunders. There is no evidence to that effect. 

The Chairman. But the record shows he was in there at the time of 
the election ? 

Mr. Saunders. Yes, sir. 

Mr. Carrico. At the time of the taking of this testimony he was 
still there ? 

Mr. Saunders. Yes. 

Mr. Thurston. In order that I may get your view fully, suppose a 
man sends in his request to go on the ballot and says in that request 
"I am a subject of Great Britain," or if a man sends in that request 
and says on that request "I am an adjudged lunatic," or he says on 
that request "I am a convict in the state penitentiary," or says on 
that request ^'I am a minor under 21 years of age," or says on that 
request ''I am a woman," would the secretary of state in those in- 
stances be compelled to put that name on the ballot ? 

Mr. Saunders. I will answer all those questions seriatim. Sup- 
pose a candidate sent in his notice and added the statement ''I am a 
felon," what would the secretary of the Commonwealth do ? 

Mr. Thurston. Well, under your position he would have to put 
him on. 

Mr. Saunders. Don't you think so? 

Mr. Thurston. No. 

Mr. Saunders. I affirm again that there is nothing in the constitu- 
tion which says, because a man has been convicted of felony in a 
state court, he is disqualified to be elected to Congress. 

Mr. Thurston. I will tell you my contention: Where the law pro- 
vides, any person may send in this notice to the secretary of the com- 
monwealth; the word "person" in your law, read in connection with 
your constitution and your other laws, means and means only, and 
can mean only, a person qualified to run for that particular office. 

Mr. Saunders. Suppose the law means that; I will take up that 
proposition. If our law meant to say that persons qualified to be 
Members of Congress under the Constitution of the United States, but 
disqualified to hold office under the local law, should not be candi- 
dates for Congress, then on that point our law would be a nullity. 

Mr. Tou Velle. Taking that proposition, who would be the judge 
of their qualifications ? 

Mr. Saunders. But one body in the world, and that is this body. 

Mr. Tou Velle. But what had been done at some place else would 
be simply evidence. 

Mr. Saltnders. Certainly. Evidence which this House has held is 
not binding. Even if that evidence was conclusive in the other juris- 
diction, it would not be conclusive so far as the House was concerned, 
because tliis House would determine the qualifications of its Mem- 
bers under authority derived from the Constitution of the United 
States. 



PABSONS VS. SAXJNDEES. 145 

Now, I will agree with Senator Thurston's proposition that when 
the constitution says a felon shall not hold office it means exactly 
what it says, but it refers to tenure of office in the State of Virginia. 
It is a strainetl construction of that instrument to make its pro- 
visions relate to the qualifications of a Member of Congress. It is 
an infringement upon the just authority of this body for a State to 
provide that its disqualifying laws shall operate, ipso facto, to 
exclude a candidate from ever reaching tliis body and presenting his 
claims to its consideration. Take the case of a man in Virginia 
who commits a malicious assault. He is a felon by our laws. Still, 
the minimum punishment in such a case is a fme of $5 and twenty- 
four hours' confinement in jail. The constitution attaches disquali- 
fication to hold office to any conviction of felony, but it is simply 
absurd to say that such a man would be excluded from the ballot if 
he sought to be a candidate for Congress. Senator Thurston inti- 
mates by his question that a felon of this character, or of any charac- 
ter, should be rejected by the secretary and his name withheld from 
the local boards which print the tickets, or ballots. 

This committee is asked to sustain that contention, by supporting 
the constitution of Virginia in derogation of the authority and 
privileges of this body. 

The Chairman. Suppose the secretary of the Commonwealth 
declined to put Mathew's name on the ballot; how could he get 
it on ? 

Mr. Saunders. By mandamus. The application would be made 
to the appropriate court to require the secretary to perform a min- 
isterial act. 

The Chairman. Vrould the courts of your State say that a man 
of that kind was in a comlition of mind even to get the consent of 
his own mind to get his name on the ballot ? 

Mr. Saunders. They would doubtless rule that it was not proper 
for them to enter upon an inquiry which belonged to this House, and 
which it could make without regard to the findings of a state court. 

The Chairman. That is not a question for the courts to consider, 
and the name would go on the ballot ? 

Ml'. Saunders. The law of Virginia can not provide that a man 
who aspires to membership in Congress shall not be a candidate. It 
can not throw obstacles in the way of his exercise of a constitutional 
right. 

Mr. Howell. Suppose he had been elected ? 

Mr. Saunders. Yes. 

Mr. Howell. Your State has jurisdiction of him ; he could not come 
to Congress. 

Mr. Saunders. Well, that merely suggests an inquiry as to the 
appropriate legal procedure in Virginia to secure the liberty of a man 
who had been elected to Congress. Of course a man might be so 
hopelessly insane that no question of election or procedure could 
ever arise. But a district might well elect a man of disordered mind, 
a man who, on inquiry, might be ascertained to be non compos in some 
direction. He would be entitled to have Congress pass on his case, 
and the House would, doubtless, receive or reject him, according to 
the extent and character of his mental disorder, 
38069—10—10 



146 PARSOisrs vs. saundees. 

The Chx\irman. How could he commence mandamus proceedings 
under the laws of your State ? 

Mr. Saunders. By petition to the proper court. This would be a 
mere matter of appropriate procedure. 

But I do not desire this committee to misapprehend my position. 
I repeat that I do not contend for a moment that a lunatic who hap- 
pens to hold a certificate of election to Congress can force himself upon 
the House and compel it to receive him under the provisions of the 
Constitution. The House is amply able to deal with such a case. 
My argument goes no further than that it is- a case for the House, and 
not for the local authority. The disability clauses of the state con- 
stitution are irrelevant in this connection. 

The Chairman. My question does not get to the question of the 
qualification of the man to sit in this body, but under the Virginia law 
there are required certain conditions to get his name on the ballot. 
First, he has to decide the question whether or not he is to run for 
Congress. 

Mr. Saunders. Yes. 

The Chairman. That is the act of a man who is rational. 

Mr. Saunders. Not necessarily. There are some irrational men 
who have made up their minds to run for Congress. [Laughter.] 

The Chairman. That may be true; I will agree with you on that 
general proposition. But he is doing certain things now to get his 
name on the ballot. I say he must decide for himself whether or not 
he wants to run for Congress. And having so decided, he must do 
something else; he must perform another rational act. 

Mr. Saunders. He performed the necessary act. 

The Chairman. And that is, to write a letter ? 

Mr. Saunders. He wrote a letter, at least a notice of candidacy, 
and a well-written one, too, for that matter. 

The Chairman. And then have two persons sign that, vouching 
for him in some way ? 

Mr. Saunders. They signed it all right. 

The Chairman. One of them testifies he did not know him and had 
never seen him before. 

Mr. Saunders. That may be, but there is no claim that the iden- 
tical man Mathew did not sign the notice. 

The Chairman. His letter goes to the secretary of the Common- 
wealth and the secretary declines to put his name on the ballot ? 

Mr. Saunders. Yes. * 

The Chairman. Do you mean to say you can find a court in the 
State of Virginia anywhere that would issue a mandamus, knowing 
the facts, knowing he was adjudged a lunatic, which would issue a 
writ of mandamus to compel the secretary of state to put his name 
on the ballot ? 

Mr. Saunders. Well, I could not undertake to say what a court of 
Virginia, or of any other State, would do. But this question was not 
presented to a court. 

The Chairman. I am not a citizen of Virginia, but from my knowl- 
edge of jurisprudence in Virginia I do not believe any court in that 
State would issue a writ of mandamus to compel the secretary of 
state to put a crazy man's name on the ballot. But I do not think 
that has anything to do with this. 



PARSONS VS. SAUNDERS. 147 

Mr. Saunders. That is forei«2;n to the case, because there are no 
such facts in the case. There is no question that Elliott Mathew 
wrote his notice; there is no ([uestion that the man who sio;ned it was 
Elliott Mathew; there is no question that he actually lodged his 
notice in the office of the secretary of the Commonwealth of the State 
of Virginia; there is no question that the ex parte information that 
Mathew was a lunatic was given to the secretary; and there is no 
cjuestion that this matter was taken up by the attorney-general of 
Virginia in the course of deliberate inquiry in his office. As a result 
of that inquiry he advised that Mathew's name should go on the 
ballot. 

Mr. Howell. What would you say in the case of a convict who was 
sentenced for life, and who made application to run for Congress? 
Would the secretary have to put his name on the ballot ? 

Mr. Saunders. You can easily ask questions until a point is 
reached where we would all agree that the secretary ought not to 
publish a name. I can conceive of such cases, but the secretary of 
the Commonwealth and the attorney-general did not think that this 
was such a case. I have asked the question before, and I repeat it, 
What ought the secretary to do if a felon sent in his name as a candi- 
date for Congress? 

Air. Howell. If he is under conviction antl sentence ? 

Mr. Saunders. I am putting the case of a man who enjoys his 
physical freedom, but who is disquahfied for office by the constitu- 
tion of Virginia. He is under duress of law, so to say. What would 
you do in such a case ? 

Mr. Howell. As I understand the matter, this Elliott Mathew 
was not a free man; he was under the control and jurisdiction of the 
State. 

Mr. Saltnders. The history of his case shows that his insanity 
was recurrent. 

Mr. Howell. He was simply an escaped lunatic. 

Mr. Saltnders. He was at large at the time, that was true. But 
what of the case I propound ? What would you do in the case of a 
felon who was absolutely disqualified to hold office b_v the consti- 
tution of Virginia, but who sent in a formal notice that he would be 
a candidate for Congress ? 

The Chairman. Some members of the committee desire to leave 
promptly at 12 o'clock, and we will ask you to suspend at this point. 
How much more time do you think you will require ? 

(After informal discussion.) 

The Chairman. We will close this case to-morrow at 12 o'clock. 
We will take a recess now until 8 o'clock this evening, and to-night 
we will ask you to proceed with your statement, during the presenta- 
tion of which you will not be interrupted; and we hope you will be 
able to conclude within two hours. Then, to-morrow at 10 o'clock, 
we will give Mr. Thurston until 12 o'clock, when the case will be 
concluded. 

(Thereupon, at 12 o'clock noon, a recess was taken until 8 o'clock 
p. m.) 



148 parsons vs. saunders. 

evening session. 

March 4, 1910. 
The committee met at 8 o'clock, pursuant to the taking of recess, 
Hon. James M. Miller in the chair. 

ARGUMENT OF E. W. SAUNDERS, THE COSTTESTEE— Continued. 

Mr. Chairman. I desire to file, as persuasive authority on various 
points touched upon in my remarks of yesterday, the following- 
extracts from the Congressional Globe, volume 20, page 184, in 
which is discussed the proper attitude of Congress toward appor- 
tionments established by the legislative bodies of the several States. 
The participants in this discussion recognize that the right of the 
States to make congressional apportionments is derived from article 
1, section 4, of the Federal Constitution. 

The formation of districts by which elections shall be made is a regulation of the 
manner of election. (See Globe, 184, Thompson.) 

The judge who disregards a general law to relieve a particular evil injures the whole 
community and usurps legislation. 

The existence of the power to remodel districts is one thing; the propriety of its 
exercise is another. 

To give a seat to this contestant is founded on the assertion that this House can 
correct whatever they think is indiscreet or unfair in the legislative action of a sov- 
ereign State. 

In these election cases the House acts judicially; its function is exclusively judicial. 

It is sometimes loosely supposed that the House possesses a general superintending 
power over the election of its members, which enables it to dispense with the requisi- 
tion of the laws by which those elections are regulated, an unlimited discretion which 
warrants such a determination as may seem equitable, though in conflict with the 
statutory enactments of the States. This, however, is a most erroneous view of our 
duty. The Constitution is as obligatory on this Hoiise as on any State or private 
individual. The same instrument which constitutes us judges of election confers on 
the state legislatures the power to prescribe times, places, and manner of holding 
elections. When, therefore, the State has made a regulation which it is empowered to 
make, this regulation must have the force of law and be as binding on this House as 
on any individual. The power to make or alter them exists in Congress, but not in 
this House alone. (Globe, 183.) 

It is in vain to say that a legislature may prescribe the time, etc., if such prescription 
is not final, if this House may disregard it whenever it thinks it has been indiscreetly 
or unjustly exei'cised. 

I said this afternoon, in response to a question propounded to me, 
that if a Member of this House was unseated for disqualification the 
candidate receiving the next highest number of votes would not be 
seated. The House has repeatedly decided that the disqualification 
of a sitting Member does not entitle contestant who had received the 
next highest number of votes to take the vacated seat. In support of 
this proposition I refer to Hinds, volume 1, page 396; also to a later 
case, Bayley v. Barbour, volume 1, page 422; also Hunt v. Menard, 
page 205. 

Mr. Nelson. I just happened to be turning to the Constitution and 
the Hinds annotations to the Constitution, in which he lays down that 
principle: "Minority not seated when returned Member is disquali- 
fied." 

Mr. Saunders. The citations are taken from Hinds's Monumental 
Compendium, or vade-mecum, for the Members of Congress. 

This afternoon, Mr. Chairman, I was proceeding to submit authority 
for the proposition that, so far as the eligibility or qualifications of a 



PAKSONS VS. SAUNDERS. 149 

Member of Congress are concerned, no State can affect them by any 
leo:islation of its own, whether organic or statutory, whatever its pur- 
pose may be or however sweeping or comprehensive the character of 
its legishxtion. As a matter of necessity the legishition of a State can 
operate no further than upon those matters which are subject to its 
jurisdiction. This statement is an obvious truism. 

Now, whatever may be the declaration's of the organic law of Vir- 
ginia with respect to disquliafications, it inevitably follows that its 
provisions relate to officers who are within the scope and operation of 
that law. It has no sort of relation or application to candidates whose 
qualifications are determined by the terms of a higher and paramount 
law. While this statement is obviously true, Mr. Chairman, I do not 
wish to be understood as maintaining the further proposition that if a 
Member elect is affected at the time with lunacy, or if lunacy super- 
venes, that this House is powerless to deal with such a situation. 

I merely wdsh to get out of the case a confusing element, for the 
constitution of Virginia is a confusing element in so far as it is cited 
to establish disqualifications in a candidate for Congress. It possesses 
no authority in the premises, and I wish to dismiss the same from 
consideration in order that j^our attention ma}^ be directed to the 
law which does relate to and fix the qualifications of a member of 
Congress. 

The constitution of Virginia provides that a lunatic is disqualified 
to vote or to hold office; and further that a felon and a man who has 
fought a duel with a deadly weapon are likewise disqualified. All 
of these persons are disqualified by the same section, and while the 
case of the lunatic seems to impress the members of the committee 
more forcibly than the case of the other parties, it will be perceived, 
as a matter of law, that the constitution of Virginia puts all of these 
disqualified persons upon the same footing of disability. The dis- 
qualifications are imposed alike upon the lunatic, the felon, and the 
duelist, and no distinction whatever is made between them by the 
provisions of the fundamental law. If there is a disqualification 
upon a lunatic, a felon, or a duelist to hold office in the Congress, 
that disqualification must be sought in the Constitution of the 
United States and not in the constitution and laws of Virginia. 
Hence, I conclude that as the qualifications of Mathew as a candi- 
date for Congress must be determined by the paramount law of the 
land and not by the organic law of Virginia, he was properly on the 
ballot in the election of 1908. The laws of Virginia had no right to 
exclude him as a candidate for Congress merely because he could 
not hold office in that State. If my premise is correct, and the 
House alone can judge of the election and qualifications of its 
mejiibers, then no state law can prescribe that persons who are not 
disqualified for Congress by the Federal Constitution shall be 
ineligible to a seat in the House of Representatives or be precluded 
from being voted for as candidates for that position. 

Nothing I am saying now touches upon the question of the right 
of the Congress or the House to deal with the disqualification of lunacy 
when a member elect afflicted with that disability presents himself 
at the bar of the House. I am simply maintaining in this connection 
that the law of Virginia has no place here, and can have no place, when 
it undertakes to say that the man Mathew or any other man, who 
possesses the constitutional requirements, is disqualified to sit in 



150 PAHSONS vs. SAXJJSTDERS. 

Congress. What I am now saying is solely intended to eliminate 
the use of the constitution of my State in aid of contestant's propo- 
sition that Mathew had no right to a place on the ballot in the elec- 
tion of 1908. 

I take it to be a further fundamental proposition, Mr. Chairman, 
that when a man under the terms of the Federal Constitution is 
not disqualified as a candidate for a seat in the House of Repre- 
sentatives no State has the authority by virtue of any provisions 
of its local laws to forbid one of its citizens from being a candidate 
for the House of Representatives or to hinder him from finally 
submitting the question of his qualifications to the judgment of this 
body. 

The States can not undertake to saj^ that a man who is not dis- 
qualified by the paramount law shall not present the question of 
qualifications at the bar of the House, for such action on their part 
would be the prejudgment of questions exclusively reserved for the 
decision of this body. The ministerial officers in my State who 
were asked in an ex parte way to withdraw Mathew's name from 
the ballot very properly decided that this action was not within 
their powers. 

The secretary of the Commonwealth, when he was informed by 
my political supporter, W. D. Martin, that Mathew was a lunatic 
and that his name should be withheld from the ballot, very properly 
replied that he could not take this step; that he could not pass on 
Mathew's mental qualifications or hinder him from taking the trial 
of that issue, if elected, to the House of Representatives; that he 
could not undertake to say that the electors of the Fifth District 
should not vote for Mathew or elect him if they saw fit. I do not 
know how any court in the State of Virginia could undertake to 
hinder a man not disqualified, save by the laws of Virginia, from 
being a candidate for, or being voted for, for Congress. 

I referred to the fact this afternoon that the disqualification of 
the lunatic and the disqualification of the duelist is precisely the 
,same under the laws of Virginia. I asked the question if a duelist 
had been a candidate for Congress in the election of 1908, and had 
forwarded a proper notice to Richmond, how any court in Virginia, 
state or federal, would have proceeded to strike his name from the 
ballot, because he was disqualified to hold office by the constitution of 
that State. I know of no tribunal that upon a question of qualifica- 
tions to sit in this body would undertake to forestall this House and 
to deny to a man the right to be a candidate, and to bring his case 
before this body, as he would have the right to do, if elected, even if 
he was affected with the disqualifications imposed by the paramount 
laws. 

It was suggested that Mathew had been adjudged a lunatic. 
But even if that adjudication was effective in Virginia, it would not 
be binding upon this body, if a Member-elect who had been adjudged 
a lunatic wished to contest this finding before the House. This body 
has declared that even the finding of a court on an issue of fact 
affecting the qualifications of a Member is not binding on the House 
of Representatives, which will conduct its own investigations and 
reach its own conclusions. 



PARSONS VS. SAUNDERS. 151 

Let me cite you to that case. 

The committee denied the binding effect of the decision of a territorial court on a 
question of fact concerning the qualifications of its Delegate. (Hinds, vol. 1, sec. 413.) 

An inquiry into the qualifications' of Mathew is merely an inquiry 
of fact, and the secretary of the commonwealth in Virginia very 
properly passed it up to the House of Representatives. Suppose 
Mathew had been electetl and subsequently had presented himself 
as a Member-elect at the bar of this House, what would have been its 
action ? 

Would this House have undertaken to say, "We can not hear you; 
you have been adjudged a lunatic, and that adjudication by a Vir- 
ginia justice of the peace will not be inquired into by this body?" 
Assuredly the House would have done what the Senate did in the 
case of Senator Niles, when he was charged with lunacy. A commit- 
tee would have been appointed, as in any other case of alleged dis- 
qualification, and on its inquirj" and report tlie House would have 
acted. Lunacy in a Member-elect, whether existing at the time of 
election or supervening at a later period, will not in the absence of 
inquiry and ascertainment by the House furnish ground for rejec- 
tion. In other words, lunacy, when ascertained otherwise than by 
the action of the House, does not operate, ipso facto, to disqual- 
ify a Member or cause his rejection. 

All of this, Mr. Cliairman, is designed to show that any man who 
is affected merely with a state disqualification has a right to bring 
his case to this House if he is a candidate. It is not contended that 
an absolute lunatic, merely because this disqualification is not men- 
tioned in the Constitution, can not be rejected by the House. I hold 
that the powers of the House are ample in tlie premises, but it is the 
House that must deal with the question of disqualification, not a 
state functionary by anticipation. 

The party alleged to be suffering from disqualification can not be 
hindered from coming here, and if this be true, then Mathew' s quoad 
the House of Representatives was a lawful candidate. If he was a 
lawful candidate, pursuant to a lawful notice, his name was pniperly 
on the ballot. 

A lunatic is not ipso facto disqualified to sit in Congress, For it is 
perfectly conceivable that on inquiry a lunatic might be seated, and 
certainly the mere suggestion of lunacy, if a man was not dangerous, 
would not cause his expulsion. It is a (question, I may say, of degree 
and extent. 

As I have said before, lunatics have sat in this body. Our State 
was represented in former years by a member wlio was notoriously a 
lunatic at times, and whose will was avoided on that ground hj the 
supreme court of Virginia. 

Take two cases, by way of illustration. A raving, dangerous luna- 
tic presents himself, with a certificate of election. He would be 
promptly rejected. The House having in view its safety and com- 
fort, as well as the ])ublic interests, would meet such a man at its 
threshold and, on inquiry, exclude him. But take another case. 
Suppose a man presents himself who was affected with some measure 
of lunacy, a man who was disordered to such an extent that, tech- 
nically, he would be a lunatic, but who was neither dangerous nor 
disaerreeable. We have all seen such cases. In everv community 



152 PAHSONS vs. SAUNDERS. 

there are men who could, on occasion, be proven to be lunatics, but 
who are well equipped in most directions to take care of their inter- 
ests. They are frequently men of accomplishments, alert, bright, 
well equipped, but insane on one point. Suppose such a man pre- 
ssnted himself with a certificate of election, does anyone suppose 
that he would be rejected' as a matter of course if inquiry showed that 
he was technically a lunatic ? 

Take a man wlio is affected with that form of lunacy known as 
Spiritualism, an obsession which does not seem to be at all incom- 
patible with the highest form of business sense, and the ability to 
accumulate property ; yet in many instances the courts have set aside 
the contracts of men of that sort, on the ground that they were 
lunatics. 

Suppose a Spiritualist was elected to this bod}^, would it be con- 
tended that on proof of that fact alone, apart from any other features 
of objection, he would be excluded from membership ? 

Mr. Bennet. We ha,ve a vSpiritualist in our body now. 

Mr. Saunders. There is another feature of this proposition, show- 
ing that the disqualification of lunacy must be inquired into by the 
Hoiise, and that no adjudication in a state court will operate to dis- 
qualify a candidate on this ground to the exclusion of the right of 
inquiry, and final adjudication by this bodv of the qualifications of 
its Members. This feature is the right of the constituencies to be 
represented by candidates of their own choosing, even if mentally 
disordered. 

The House would deal with a disc|ualification arising from mental 
disorder precisely as it would with flisqualification proceeding from 
physical disability. The House would reject an absolute physical 
imbecile, but if a constituency chose to elect a Representative who 
was largely incapable to attend to his duties by reason of ])hysical 
disability, Vmt whose incapacity did not proceed to the point of abso- 
lute physical imbecility, he would hardly be rejected by the body. 

All of these illustrations tend to show that the questions of extent 
and degree are so material to a suggested disqualification like lunacy 
that no state functionary would be authorized on an ex parte sugges- 
tion, or even on equity, to say that a man should not be a candidate 
for Congress unless, perhaps, a case was presented of an absolute, 
raving, dangerous maniac, whose notice was not his own. 

In the case in hand Mathew was a man of good education, the 
subject of recurrent insanity, at times in the asylum, and at other 
times furloughed on account of his improved condition. The secre- 
tary of the Commonwealth declined to enter upon the inquiry into 
his actual condition, or to delay printing the ballots, to pass on a 
disqualification which related to membership in a body which pos- 
sessed exclusive rights in this respect. In refusing to take the step 
asked, the secretary committed no breach of duty. 

If he had withdrawn Mathew's name from the ballot, he might 
have justified himself by treating the case as an emergency situation 
not contemplated by law and not to be treated by the usual rules. 
Evidently, however, he preferred to stand on the law, and to leave to 
others charged with the dut}^ of inquiry, if such persons existed, to 
make the inquiry and take the consequent action, which the law did 
not impose upon him. He preferred to not to establish a precedent 
which later might be invoked to make of his offi.ce, so to say, an office 



PARSONS VS. SAUNDERS. 153 

of oyer and terminer, to pass upon the right to go on the ballot of any 
one of the persons in the class of disqualified persons established by 
section 23 of the constitution. He was a ministerial authority, not 
required to pass on the qualifications of candidates or to make inqui- 
ries in that connection, but merely charged with the duty of sending 
out the names of can(h(hites wlio lodged in liis office the formal notices 
of candidacy that confoi-med to the requirements of the statute. 

But even if the secretary might have legally withdrawn Mathew's 
name from the ballot, he did not do so. As a physical fact, his name 
was on the ballot. He was there conformably to a regidar notice. 

He was not on the ballot as the result of a trick or conspiracy, but 
in conformity with the Virginia law, which provides that any man 
desiring to be a candidate for Congress shall send in his notice to the 
secretary of the Commonwealth. He forwarded such notice, signed 
by him and by the witnesses required by the statute. That law is 
found in the analysis I have filed for the aid of the committee. (See 
analysis, p. 7.) Upon receipt of a proper notice, without further for- 
malities, the secretary is required to include the name of the candi- 
date forwarding same with the names to be printed on the official 
ballot. This notice is in the record, page 3, and I venture to say that 
in all respects it conforms to the law as closely as the notices forwarded 
by either Mr. Parsons or myself. This man was a candidate in that 
district for weeks preceding the election. His postals stating his 
platform went all over the district. One of them will be found as an 
exhibit, filed with the testimony of Hunt Hargrave, mayor of Chatham. 
(See Record, p. 415.) 

The secretary in good faith, on receipt of tlie notice, put his name 
on the ballot. Physically his name is there, and no hair-splitting 
distinction, such as has been advanced here, can satisfy this com- 
mittee that a name which is visually on a ballot is not there. It is 
palpably there, and the voter was required to take notice of it when he 
came to mark his ticket. This is not a question of a contract between 
a lunatic and a third party, seeking to bind the lunatic and freely 
admit that such a civil contract between an adjudged lunatic and 
another party would be void. The secretary of the commonwealth 
was concerned with only one inquiry: Is the signature to this notice 
the signature of EUiott Mathew? Is there such a man as Elliott 
Mathew and is this Ids genuine signature ? That was all. It can not 
be said that the signature to the original notice actually fixed by 
Mathew is a nuUity. The contracts of Elliott Mathew may be void, 
but his actual signature is not a nullity. It is a physical entity. 
And upon the notice given by Mathew, his name was put on the 
printed ballots in strict conformity with law. 

As I have stated lieretofoi-e, the information of this man's candi- 
dacy was given out by the Deriiocratic newspapers. For instance, 
two weeks before the election the news was given out that his name 
would be on the ballot. (Record, p. 380.) 

What follows when a man's name is on the ballot, pursuant to 
notice? A voter, finding more than one name under a given head, 
is required by the statute to mark out the names of the candidates 
for whom he does not wish to vote. There is no hardship in that. 
The marking may be done by pen or pencil. I think the gentlemen 
who counted the ballots will agree with me when I say there is no 
simpler form of ballot in the country than the one used in Virginia. 



154 PABSONS VS. SAUNDEES. 

Nor do the laws of any State make it easier for a voter to indicate his 
choice than the laws of Virginia. The voter found three names on his 
ballot under the head "For Conoress." The law said to him if you 
wish to vote for any one of the three, mark out the other two. The 
chairman put this question to me to-day. Suppose there had been 
only one name printed on the ticket and a voter had written under 
that name the name of the lunatic, what would be the effect on the 
ballot ? The effect of that action, by the force of the Virginia law, 
would be to avoid that ballot. 

Mr. KoRBLY. Without striking the other one off ? 

Mr. Saunders. That is what I said. If a voter writes one name in 
and fails to mark the other off his ballot is void by virtue of the terms 
of the statute. 

Can this committee, a body of lawyers, draw any distinction 
between a ballot in which the man had written in a name with pen 
and ink or pencil and another ballot on which a voter of his own voli- 
tion allowed the printed signature of a candidate to remain thereon ? 
Even in criminal law a man is reasonably presumed to intend that 
which he does. If I adopt any signature as mine, it is mine. If a 
voter allowed the printed name of Elliott Mathew to remain on his 
ballot, it was an act of volition, with consequences just as definite 
under the laws of Virginia as if he had scratched out two names, leav- 
ing the third, and then added the name of Elliott Mathew. 

I want to say a word in this connection with reference to the proper 
rule to be applied to the badly marked ballots. I do not believe that 
the committee will have any difficulty with respect to the bulk of the 
ballots that were reserved for future consideration by the full com- 
mittee. I think that it is altogether likely that when the committee 
comes to consider these ballots it will count most of them as the judges 
of election counted them. This in itself will be a vindication of the 
action of the judges from the charges of irregularity that have been 
preferred in respect to the count. I venture to say that you have 
never investigated an election case so free from any suspicion of fraud 
and wrongdoing as this. 

It is desired, however, to call attention to a few of these ballots. It 
is perfectly true that you wish to get at the intention of the voter; but 
you must arrive at it in the same way that you get at the intention of 
a testator or of a grantor in a deed. 

The voter's intention must be ascertained in conformity with the 
rules of law. When the statutes of a State provide that he must 
express his intention in a prescribed way, then that is the only way 
in which his intention can be conveyed. If he departs from the pre- 
scribed way, his ballot is void. This, in effect, is the rule of the 
House of Representatives. It has been frequently affirmed. I 
understood from the honorable chairman of this committee that in 
his own State, where the Australian ballot system is in force, if I did 
not misapprehend him, they also try to get at the intention of the 
voter; but that there was no specific provision of the statute to the 
effect that if a ballot was not marked in a particular manner it would 
be void. 

Is that correct, Mr. Chairman ? 

The Chairman. Our Australian ballot that we have at this time is 
not the same as it was when I raised that question. The supreme 
court of our State in passing upon that question said that where the 



P.UISONS VS. SAUNDERS. 155 

reqiiirenient was that you had to have the cross within the square, it 
was sufhcient if it was substantially in the square; that means the 
greater part of it should be in the square. 

Mr. Saunders. I imagine that under our law that would be true; 
but there arc cases of this kind: Suppose a voter is required to put 
the mark on the left instead of the right hand side of the ticket. 
What would be the effect if he put the mark on the right ? Would not 
the ballot be void ? 

Mr. Bennet. That makes it void in our State. 

Mr. KoRBLY. And in Indiana. 

Mr. Saunders. It makes it void in my State. 

What I washed to say in connection with, the reserved ballots is this: 
If the mark is througli three-fourths of the name, whether it barely 
touches the top or the bottom or goes diagonally through the name, 
that ballot is sufficiently marked quoad that name. Of course, I do 
not untlertake to say that the mark must be through the middle of the 
name. If it merely touches the top or the bottom, in my judgment 
it is a sufficient marking. But if the line starts, goes halfway across, 
and then turns up, as for instance — 

E. W. Sa unders — 
that is an insufficient marking. In such a case you need not con- 
sider the question of the voter's intention. He has not indicated it, 
as required b}^ law. If a voter marks half of two names, as for 
instance — 

J. M. Parsons, 
Elliott Mathew% 
the committee can not count that ballot for the third unmarked name. 
The law^ has not been followed. 

And so wdien the voter makes up and down marks, that marking 
is insufhcient. I do not mean a zigzag mark througli the name, for 
that marking would be sufficient, but as follows: E. W. S^injiders, 
J. j!fl. Pj|ir!^ons. Ballots of the latter character must be rejected. 

Again, I submit that the ballots on which the voter has undertaken 
to put cross marks by the names, in addition to marking through three- 
quarters of the names, should be rejected. At least, the committee 
shoukl consider seriously before counting them. Our statute provides 
that no ballot, save an official ballot, specially prepared as above pro- 
vided for, shall be counted. (See analysis, p. 11.) When a voter 
undertakes to add cross marks to his ballot or any additional marks, 
then the ballot in the form in wdiich he leaves it is not prepared as 
provided for by our statute. 

Now, permit me to read the Virginia statute in this connection. 

Mr. Bennet. There is one kind of ballots we certify up as doubtful, 
and that is where the man makes his mark through the names and 
then a little wiggle on the side, disconnected from his pencil mark. 

Mr. Saunders. The ballots which I have in mind are ballots which 
have a cross mark like this + beside the name or on some other portion 
of the ballot. These ballots do not conform to our law, for the reason 
that they are not specially prepared as provided for. If a voter runs 
his mark clear through a name, or names, and extends it to the right, 
that marking is not objectionable, but when he undertakes to add 
cross marks, then I say that those marks may be properly considered 
as distinsuishinsf marks. 



156 PARSONS vs. SAUNDERS. 

Now, here is what our statute says in this connection: 

No name shall be considered scratched unless the pen or pencil mark extends through 
three-fourths of the length of said name; and no ballot save an official ballot specially 
prepared as above provided for shall be counted for any person. 

The ballot must be an official ballot ; it must be specially prepared 
as above provided, and then it shall be counted. Of course, the neces- 
sary implication is that if it is not specially prepared as provided for 
it shall not be counted. 

Further : 

Provided, it shall be lawful for any voter to erase any or all names printed upon said 
official ballot and substitute therein in writing the name, or names, of any person, or 
persons, for any office for which he may desire to vote. 

I call attention to this paragraph of the law: 

Every elector qualified to vote at a precinct shall, when he so demands, be furnished 
with an official ballot by one of the judges of election selected for that duty by a 
majority of the judges present. The said elector shall then take said official ballot, 
and retire to said voting booth. He shall then draw a liiie, with a pen or pencil, 
through the names of the candidates he does not wish to vote for, leaving the title 
of the office, and the name or names of the candidates he does wish to vote for, 
unscratched. 

If a man scratches out the title of the office, that will void the bal- 
lot. This has been the law in Virginia for quite a while. You will 
see in the case of Yost v. Tucker that over 1,000 ballots were rejected 
because the words ''For Congress" were erased by the voters. I do 
not believe, however, that this committee has ever examined a case 
in which there were fewer void ballots, and fewer questions of diffi- 
culty in connection with the return, and the count of the votes, than 
in this case which you have been investigating for the last two weeks. 

I do not believe that in your final count you will practically reject 
any ballots either for contestant or contestee that were counted by 
the judges of election. There is no trouble ov-er ballots on which 
two names are left by the voter. Under any system, Australian or 
otherwise, those ballots are plainly improper to be counted. Ballots 
that are not marked as prescribed by law are expressly voided by 
the Virginia statute. 

In the case of Yost v. Tucker, which was decided a few years ago, 
when Mr. McCall, of Massachusetts, was a member of the committee, 
and took an active part in the case, over a thousand ballots were 
rejected on the ground that the words "For Congress" had been 
erased by the voters. This action was in strict conformity with the 
A^irginia law, and is merely one of the many instances in which the 
House has ruled that when the election laws of a State prescribe that 
a thing must be done in a certain way, that way must be followed 
or the ballot will be rejected. There was no question, if the intention 
could be considered apart from what was actually done to indicate 
it, that the voters who erased Tucker's name and the words "For 
Congress," leaving Yost's name, intended to vote for Yost. Yet 
their ballots were rejected, because the statute provided that the 
erasure of these words would make the ballot void. 

In this connection the following precedents of the House are sub- 
mitted : 

MARKING OF BALLOTS. 

The state law providing that ballots shall not be counted unless marked a particular 
way, ballots otherwise marked should be rejected bv the House. (Hinds, vol. 2, sec. 
7056.) 



PAKSONS VS. SAUNDERS. 157 

A mandatory statute providing that the writing of the name of one candidate under 
the name, not scratched, of another should make the whole ballot void. Sustained 
by th(' House. (Hinds, vol. 2, sec. 1009.) 

Although the intent of the voter be entirely plain, the House will follow a mandatory 
state law, which requires the rejection of the ballot. (Hinds, vol. 2, sec. 1078.) 

Although the voter's intent is plain, the House will follow a state law which requires 
rejection of a ballot. (Hinds, vol. 2, p. ti07.) 

Where state law requires rejection of ballot, unless the voter scratches two-thirds of 
the name, a ballot scratched less than two-thirds must be rejected. (Hinds, vol. 2, 
sec. 1078.) 

See case of Yost v. Tucker, that in order for a ballot to be counted it must express the 
will of the voter, but that will must be expressed according to law. (Hinds, vol. 2, 
p. 608.) 

The testimony of Ihe voter can not be received to impeach the ballot recorded as 
cast by him. (Hinds, vol. 1, sec. 831.) 

Tiie latter citation is merely the application to the "ballot of the 
familiar rule relating to the interpretation of written instruments. 

Mr. Tou Velle. What do the}' consider two-thirds — the name or 
the initials, or just the name? 

Mr. Saunders. That is another thing I wish to bring up. The com- 
mittee, I think, ought to consider that question. I do not think the 
spaces between the initials and the last name ought to be considered, 
for this reason: The printer might make such spaces between the 
initials and the last name as to make the initials as long as the last 
name, as, for instance, J . M . Parsons. It would not be reason- 
able that with a name so spaced a mark through the J and the M and 
the spaces up to P should count as a mark through one-half of the en- 
tire name. 

The letters of the entire name should be considered without ref- 
erence to the space between the initials and as if written together, 
as, for instance, CMParsons. If three-fourths of the entire letters 
are marked then that ballot is properly marked. I do not know that 
the application of this rule will change the result of the count to any 
appreciable degree, but I submit that that is the proper rule to be 
followed in ascertaining whether a ballot is properly marked. 

A voter may not contradict the plain expression of his ballot. (Hinds, vol. 2, p . 
197.) 

When a ballot clearly designates the office to be filled and the name of the person 
voted for no court has ever permitted the voter to contradict his ballot by evidence 
that he intended to vote for a different person. (Hinds, vol. 2, p. 194. 

When it is undertaken to show by circumstantial evidence how a man voted, it 
should be such as to preclude any reasonable doubt as to how the vote was cast. 

It is submitted that if a voter can throw away his vote by voting 
for one who is admittedly disqualified, it is perfectly clear that, as a 
free agent, he can throw away his vote by leaving the nanifs of a 
qualified and a disqualified person on his ballot, provided that when, 
under such circumstances, the state law makes the ballot void. 

The state law providing that ballots shall not be counted unless marked in a certain 
way, ballots otherwise marked shall be rejected by the House. 

The state law requiring ballots to be rejected when not marked with initials of 
election officers, the House overruled the election officers who had counted such 
ballots. 

The committee find it to be law that ballots on which the voter undertook to express 
his choice by marks, other than the cross placed in the circle or squai'e, as provided by 
the statute, are not legal ballots and shall not be counted. (Hinds, vol. 2, sec. 1056.) 

These citations make it abundantly clear that under the laws of 
Virginia a voter did not indicate a choice for Parsons when he 
scratched out my name and left the names of both Mathews and 



158 PAESONS VS. SAUNDERS, 

Parsons. He has not indicated any intention at all, and his ballot is 
made void by the express declaration of our statute. It is a mere 
guess that a voter who left Parsons and Mathews on the ballot in- 
tended to vote for Parsons. The committee is not sitting to decide 
this case or to count votes by guessing. Having counted the ballots 
in this case and noted the way in which they were scratched, I take it 
that the committee will agree that it would be a perfectly hopeless 
enterprise to undertake to determine the politics of the voters in 
many instances from the ballots which were cast. 

Some voters voted for Br3^an and Parsons, some for Taft and 
Saunders, others merely marked out Saunders, or Parsons, leaving 
the remainder of the ballot untouched. Still others left Taft and 
Bryan on the ballot, marked out the other presidential candidates, . 
and erased either Parsons or Saunders. How could you determine 
from such ballots the political affiliations of the voter? One ballot 
had ever}^ name erased but Saunders, Parsons, and Mathew. 
Another voter left Taft, Hisgen, Parsons, and Mathew. Still 
another voter left the presidential portion. of the ticket unmarked, 
and scratched out Saunders. It would be wild guessing indeed to 
deterinine from an inspection of these ballots, the real purpose of 
the voter. But our statute forbids guessing. It provides that a 
ballot containing the names of more than one candidate for the same 
office shall be void. 

I may add in this connection that if a voter strikes out one name 
on a ballot, it may be fairly taken as an indication that the voter does 
not intend to vote for that man, but it does not indicate that he has 
a choice between the names that he leaves, much less that that choice 
•has been indicated. 

To arrive at what a voter reall^^ had in mind from an inspection of 
the ballots is an impossibility. On some of the ballots there are no 
erasures for Congressman. Of course those ballots are void. On 
other ballots all the names are erased. They are equally void. 
But why did the voter take the trouble to scratch out all the names, 
unless it was intended as an emphatic indication on his part that he 
wanted none of them. Hence, when the committee takes up the 
Parsons-Mathew, and the Saunders-Mathew ballots they can at 
best merely figure out this sort of mental process on the part of the 
voter, that in the one case he decidedly did not want Saunders and 
in the other did not want Parsons, but as between the names that 
were left he was entirely indifferent. 

The voter must be bound b}^ what he actually did. He must be 
presumed to intend the natural consequences of his act. The law 
tells him that if he writes two names on his ballot for the same office, 
or if he finds three printed names there, and leaves two, his ballot 
will be void. Hence if a voter leaves two names on a ballot there is 
nothing for the committee to do but to declare its invalidity. 

Mr. Thurston. There is one thing I want to ask you about, Judge. 

Mr. Saunders. Certainly. 

Mr. Thurston. That a ballot otherwise properly marked by the 
voter, is there any express provision by your law, if you find any, that 
you reject it because he places upon it a distinguishing mark? 

Mr. Saunders. No. 

Mr. Thurston. I have not found any 

Mr. Saunders. As I told the committee, that is a strong deduction 
I draw from the general tendency of the rulings under the Australian 



PARSONS VS. SAUNDERS. 159 

ballot system, and from that section of our law which says that a 
ballot of the form prescribed, and prepared as provided for, shall be 
counted. In conformity with the decisions relating to the Australian 
ballot, it is to be implied from this language that if a voter adds marks 
to his ballot, which may properly be styled distinguishing marks, 
he violates the primal purpose of this system, and his ballot should 
be declared void. 

Mr. Bennet. What, in 3()ur judgment, do the words "distinguish- 
ing marks" mean? 

Mr. Saunders. I don't think we have those words relating to 

the ballot prepared by the voter. 

The Chairman. Oh, yes you have. 

Mr. Bennet. It says ''a distinguishing mark or symbol." That is 
the language. 

Mr. Saunders. Well, that language relates to the form of ballot 
required to be provided by section 28 of the constitution. Pursuant 
to that section the ballots in Virginia may not be decorated with the 
eagles, tomahawks, and Indians, and all the other fancy headings which 
appeared on the ballot from New York that was exhibited here a few 
days ago. 

Mr. Bennet. Is it your judgment that that language refers to the 
preparation of the ballot by the county officers? 

Mr. Saunders. Yes. 

The Chairman. I do not think there is any cjuestion of that. 

Mr. Saunders. Now, Mr. Chairman, I do not think I speak amiss 
when I say that to-da^^ the elections in my State are as honest as the 
elections of any State in the United States. Our election laws and 
s^'stem of voting are as simple as you find anywhere. A day or 
two ago Mr. Carrico referred to a statute which forbids a sample 
ballot to be used among the voters on election day. 

Such a statute was in force some years ago and is still on the books, 
but it is now a dead letter. Mr. Parsons's supporters were evidently 
not afraid to violate this statute, for at Ridgway, a precinct in Henry 
County, where contestant received a large majority, a sample ballot 
was in use among the Republicans during the entire day of the elec- 
tion. This is not denied, and the sample will be found among the 
exhibits in connection with the testimony of J. W. Griggs. (See 
page 239 of the record.) The fact of its use was well known. 

Mr. Bennet. What do you mean by form ballot ? 

The Chairman. It is a samj^le ballot. 

Mr. Saunders. Here is the sample itself in this volume of the ex- 
hibits. The party using this ballot was an active supporter of Mr. 
Parsons. 

Mr. Carrico. Was it a sample ballot, or just showing the position 
in which the three names appeared on the ticket ? 

Mr. Saunders. It was a sample ballot. It contained the name of 
every candidate provided to be voted for at that election. 

Mr. Carrico. Having the presidents and vice-presidents on it ? 

Mr. Saunders. Yes, all of them. I do not find this exhibit as 
readily as I expected. But it is here. I examined it this morning. 

The Chairman. We will find it. 

Mr. Saunders. It contains the names of all of the candidates for 
president and vice-president and the names of the three candidates 
for Congress. It was in use all day by an active supporter of Mr. 



160 PAESONS VS. SAUNDEES. 

Parsons, and no prosecution has grown out of it. The statute is a 
dead letter. Under our present constitution every voter who regis- 
tered prior to 1904 is entitled to the aid of a judge of election in 
marking his ballot, whether he physically requires it or not. He has 
that absolute right under the constitution. With respect to the 
voters who have registered since that date, as they are all able to 
read and write they are required to mark their own ballots. This 
is not a hardship, as it is not a difficult task to mark a Virginia ballot 
correctly. 

Th*^ Chairman. They are not required to be able to read and 
write ? 

Mr. Saunders. Well, the applicant is required to make his appli- 
cation in liis own handwriting. There is no exact provision requiring 
a man to be able to read and write in order to be registered, but he 
is required to make his application in writing without assistance and 
to include a lot of prescribed things in his application. In order to 
do this, a man must be able to read and write. It is a necessary 
implication. Here is the section. 

Sec. 73. "Who to be registered : 

Each registrar shall, after January 1, 1904, register every male citizen of the United 
States, of his election district, who shall apply to be registered at the time and in the 
manner prescribed by law, who shall be 21 years of age at the next election;, who has 
been a resident of the State for two years, of the county, city, or town, one year, and 
of the precinct in which he offers to register thirty days next preceding the election; 
who has at least six months prior to the election paid to the proper officer all state 
poll taxes assessed or assessable against him, under this or the former constitution, 
for three years next preceding that in which he offers to register; has paid $1.50 for 
satisfaction of the first year's poll tax assessable against him; and unless physically 
unable to do so, shall make application to the registrar in his own handwriting with- 
out any aid, suggestion, or memorandum in the presence of the registrar, stating his 
age, name, date, and place of birth, residence, and occupation at the time and for 
two years next preceding, and whether he has previously; and if so, the State, county, 
and precinct in which he voted last, and so forth. 

Now, a man who can make such a statement as that would surely 
be able to go into a booth and mark put Parsons and Mathew, if he 
desired to vote for Saunders, or if he wanted to vote for Parsons to 
mark out Saunders and Mathew; or if he wanted to vote for Mathew, 
to mark out Parsons and Saunders. So much for the law in this con- 
nection. 

I submit, therefore, Mr. Chairman, that having in mind the Vir- 
ginia law, and the uniform decisions of the House, there is but one 
disposition that can be made of the Parsons-Mathew, and the Saunders- 
Mathew ballots, and that is to hold them void, as the judges of 
election did. 

Whatever may have been the intention of these voters, our manda- 
tory state law renders them void, and in this respect the House will 
follow the law of Virginia. The ballot itself was in nowise calcu- 
lated to deceive or mislead the voters. 

It has been stated that the voters did not know Mathew. Possibly 
a large number of them did not know him, but at least they knew 
him as well as they knew the candidates for President other than 
Bryan and Taft. There were three of these tickets, I believe, in 
addition to Bryan and Kern and Taft and Sherman. A voter who 
wished to vote for Taft or Bryan, as the case might be, was required 
to mark out the other names.' Surely such a voter when he canae to 
the three names for Congressman had learned by that time that if he 
wanted to vote for one of them he must mark out the other two. 



PAFI^ONP VS. RAU>TDi-^T!S. 161 

I desire now to take up another legal phase of this case. I stated 
to the committee heretofore that the law of Virginia does not require 
a man to be on the tax list in order to vote. I said that I would 
undertake to satisfy the committee on that proposition by an appli- 
cation to the constitution of the ordinary principles of construction, 
supported by the express decisions of some of our courts. 

This is the provision of the constitution which affords a citizen the 
right to vote: 

Sec. 21. Conditions iiiuh-r wliich parties duly ivjiisttnd shall have the right to 
vote: 

Any person registered under either of the last two seetions shall have the right to 
^•()te for member of the general assembly and all officers elective by the people, sub- 
ject to the following conditions: That he, unless exempted by section 22, shall, a.s a 
))rerequisite to the right to vote, after the first day of January, 1904, personally pay, 
at least six months prior to the election, all state poll taxes assessed or assessable 
against him under this constitution during the three years next preceding that in 
which he offers to vote: Provided, That if he register after the first day of January, 
1904, he shall, unless physically unable, prepare and deposit his ballot without aid 
on such printed form as the law may prescribe; but any voter registered prior to that 
date may be aided in the preparation of his ballot by such officer of the election as 
he may designate. 

Looking to the title of the section, it will be noted that it is en- 
titled: Conditions under which parties shall have the right to vote. 
Looking to the body of the section, it will be perceived that the right 
is afforded upon the payment of certain taxes. The citizen is re- 
quired to "personally pay, at least six months prior to the election, 
all state poll taxes assessed or assessable against him." When he 
shall have done that, he is thereby clothed with the right to vote. 
The right to vote is given to the individual by the organic law of our 
State just so soon as he shall have complied with the requirements 
relating to the payment of his poll taxes. These are the taxes as- 
sessed or assessable against him during the three years next pre- 
ceding that in which he offers to vote. This section saj^s that having 
paid these taxes, lie is thereby ipso facto invested with the right to 
vote for members of the general assembly. There is no reciuirement 
that he shall do anything else. No further action on his part is 
necessary in order that he may be invested with this great right of 
suffrage which has been the subject of struggle on the part of our 
race for hundreds of years. The moment the taxes are paid as pre- 
scribed the right to vote thereby attaches. 

Mr. Thurston. Has the legislature the right to prescribe the proof 
that shall be made ? 

Mr. Saunders. No, sir; not so as to make it a prerequisite to the 
right to vote. 

Mr. Thurston. That is where we differ. 

Mr. Saunders. Of course, 1 understand that that is wdiere we differ. 
I say that the legislature has no such right. The constitution confers 
the absolute right of suffrage upon compliance with the prescribed con- 
ditions. 1 am astonished that these gentlemen who are always com- 
plaining about limitations on tlie right of suffrage in the South should 
now contend for a construction of the constitution which would 
limit suffrage in Virginia and make it more difhcult to vote; a con- 
struction that would hamper and restrict the voters in the exercise of 
their right. Wliy should such a construction be placed on our or- 
ganic law, when it is not a necessary construction, when it is a stniined 
and violent one 'I 

:}8069— 10 11 



162 PAESOXS vs. SAU^v^DEES. 

;Mr. Thuestox. We have numerous constitutions which prescribe 
the qualifications of an elector and stop there and say nothing about 
restrictions ; and yet the state legislatures have always been conceded 
to have the right to rec^uire registration at the time and manner and 
way in which they might see fit to prescribe it as the method of estab- 
lishing the facts. 

]Mr. Saundees. All those things would depend upon the provisions 
of the organic law of those states. I stand upon the provision of our 
constitution which says that when you shall have done certain things 
you have the right to vote. We have provided in the constitution for 
registration. That, too, is a prerequisite. But when 3'ou are regis- 
tered and have paid your taxes you are entitled to vote. Now you 
want to take that right away. You want to make it dependent on 
something else. 

^Ir. Thueston. What I refer to are constitutions that have not a 
word about registration; that provide the ciualifications of a man's 
right to vote ; that give him the absolute right ; but legislatures fix and 
establish the proof by which he shall prove the right to vote. 

!Mr. Sauxdees. Xo; it is registration to which you refer; it is 
nothing else 

]\lr. Thuestox. Xo; that is only an illustration. 

;Mr. Sauxdees. Yes, but that is a very dift'erent thing from saying 
that when a man has done the thing rec|uired by the constitution, 
which is the payment of the tax, he shall not be entitled to exercise 
his right until he has done something else of an entirely different 
character. 

^Ir. Thurstox. Xo; if the constitution gives him an absolute right, 
he being 21 years of age and a citizen of the United States, to vote, 
if your contention is true the legislature has no right to go on further 
and prescribe that he shall register. 

ISIr. Sauxdees. Your contention may be sound with reference to 
the constitutions of the States to which you refer. I have not seen 
those decisions, and they have not been cited, but our constitution 
has provided for registration, and has further provided that when 
a citizen has registered and paid his taxes he shall be entitled to 
vote. I do not, of course, undertake to say that the constitution 
could not require a voter to be on the tax list. Such a rec{uirement 
could be made in the same or a subsequent section, but I maintain 
that it has not been done by the constitution, and if it has not been 
done by the constitution it has not been done by the legislature, 
for the statute is merel}^ a copy of the constitution. This is a ques- 
tion of constitutional interpretation. The provision relating to the 
tax list is found in the constitution itself. 

Air. Caeeico. Does not section 38 of the constitution, after section 
21, provide that the man may vote after paying his poll tax, and 
does section .38 provide the manner of his proving it ? 

Mr. Sauxdees. Certainly. I am coming to that fact which con- 
stitutes the strongest feature of my contention that presence on the 
tax list is not a prerequisite to voting. This committee will never 
hold, as a matter of legal construction, that a right which is given 
by one part of the organic law which is clear will be taken away by 
virtue of the ambiguous declarations of a later section. 

The later section to which you refer does not say in specific terms 
that if you are not on the list you can not vote. While this section 
says that when you have paid your taxes, as required, you can vote. 



PARSONS VS. SAUNDERS. 163 

Section 3<S provides for a list, and it provides that tliat list shall be 
conclusive evidence of what it contains for the purposes of voting. 
But nowhere does it hint that a man who has discliarged the require- 
ments of the section shall lose the benefit of that discharge should 
the treasurer negligently fail to put him on the list. It would be an 
extraordinary thing that the negligence of a functionary to do a 
ministerial act should cause a voter to lose a right which the con- 
stitution hatl already given to him. Such a view of the constitution 
would be destructive of an essential principle interpretation of 
written law, whether statutory or organic, that when one section of 
an act is clear, a right given thereunder shall not be construed to be 
taken away by a later section which is ambiguous. 

There can be no question as to the meaning of section 21. There 
is not a lawj'er in Mrginia or elsewhere who would be willing to get 
up before a court and undertake to say that there is any doubt as 
to the meaning of this section. But it can not be said that section 38 
is equally clear in respect to the effect to be given to the list. On the 
contrary, it is a subject of question by every one who examines its 
provisions. 

It has been decided by some of our courts that this section shall 
not be construed to require the presence of a man's name on the tax 
list as a prerequisite to voting. 

This is section 38 in extenso: 

Sec. 38. After the 1st day of January, 1904. the treasurer of each county and city 
shall, at least five months before the regular election, file with the clerk of the circuit 
court of his county, or the corporation court of his citv. a list of all persons in his county 
or city who have paid not later than six months prior to election the state poll taxes, 
required by this constitution, etc. 

And then it says: 

The clerk shall deliver, or cause to be delivered, with the poll books, a reasonable 
time before the election, to one of the judges of election of each precinct of his county 
or citv, a like certified copy of the list, which shall be conclusive eWdence of the facts 
therein stated for the purpose of voting. 

Mark the language, Mr. Chairman. Not that the presence on the 
list shall be conclusively required for the purpose of voting, but that 
the list "shall be conclusive evidence of the facts there stated for the 
purpose of voting." 

Now, that is a very different proposition from undertaking to say 
that presence on the list shall be conclusively required for the purpose 
of voting. The effect of the list, when reasonably considered vdih 
respect to its significance, is that it is conclusive evidence that a man 
has paid his taxes for the years for which he is on tlie list. 

If a man is on the tax list he need not concern himself further to 
prove that he has paid his taxes, and is within the benefit of the pre- 
ceding section which gives him the right to vote upon that payment. 
In other words, the list is an evidence of the payment of taxes. Are 
you going to take that which was intended to be in aid of a man's right 
to vote and make of it a barrier in the way of the exercise of that right ? 
That is the effect of the construction for which these gentlemen con- 
tend. In substance they maintain that what has been given by an 
explicit section shall be taken from the voter by a doubtful and am- 
biguous section; that the evidence of payment shall be made as essen- 
tial a prerequisite as the papnent itself. That is to put the shadow 
on an equality with the substance. That is to interpret a section of 



164 PAHSONS vs. SAUNDERS. 

doubtful import so as to make it amend a section which is clear and 
explicit. 

Now, that is my view of the constitutional provision providing for 
the right to vote on payment of taxes. You may ask me in this con- 
nection as to the necessity for the list. The advantage of being on 
the list is obvious. If a man is once on the list he is provided with 
an easy method of proving that he has paid his taxes. He need not 
take his tax tickets to the polling place. He need not concern 
himself to take the treasurer or the deputy treasurer as a witness 
to prove that he has paid his taxes and is entitled to vote. He goes 
to the polls, and the judges ask him, ''Have you paid your taxes?" 
He need only reply, "Look on the list." If his name is there, 
he has nothing to be worried over on the score of taxes. Therefore, 
the convenience to a voter by reason of being on the list is a sufficient 
inducing motive to cause him, when it is reasonably possible, to get 
on the list. 

But take the case of a voter who is out of the county when the list 
is posted, and there are scores of traveling men who are away from 
home at that period of the year for weeks ^t a time. When the 
lists are posted they are not in a position to inspect them, and even 
if they are informed by others that they are not on the list, they 
are not able to return. Will you place that interpretation on the 
constitution, which will deny them the right to vote because they 
are not able to leave their business and return to correct a situation 
due to the negligence of the treasurer? In many cases it would be 
a hardship on them to return and set in motion the necessary pro- 
cedure to get on the list. Why should they be compelled to do 
this, when all the while they have the evidence in their possession 
in the way of receipted tax tickets that they have discharged the 
fundamental requirement of the organic law ? 

Again, there are many men throughout the rural communities 
who do not see these lists, men who are busy with their work, and 
who are absorbed in other matters. In many cases the voters 
would be compelled to walk 2, 3. or 4 miles to look at the list 
which is hung up on the front door of the voting place. Must 
a man who has paid his taxes stop his work to do this ? The farmers 
are busy planting or harvesting their crops, and in the stress of their 
work they forget that the list has been posted or that the time to 
inspect the same is rapidly passing. Are you going to say that these 
voters shall not vote when they have lived up to the requirements 
of the organic law by the payment of the taxes required ? Do you 
desire to make the constitution of Virginia a stumbling block in the 
way of honest people who wish to vote and are able to show in the 
most satisfactory manner, in many cases by the direct evidence of 
the treasurer or his deputies, that they have paid their taxes ? Why 
should anyone seek to impress upon the constitution an interpreta- 
tion which carries such a result of inconvenience and hardship ? 
There are many voters who are not required to be on the lists and 
others who can not get on the lists even if they desired to do so. 
Old soldiers do not pay capitation taxes and are not required to be 
on the lists. A voter who moves in from another county, if he has 
paid his taxes in the other county, is allowed to vote without being 
on the list. He can not get on the list. A voter coming of age after 
May of the year in which he offers to vote can not get on the list. 



PAKSOJSS VS. SAUNDEKS. 165 

He inust establish his right to vote in some other way, by a receipted 
tax ticket, for instance. Why should such a ticket be effective in 
the one instance to show payment of taxes and not in another, when 
in both cases the question is merely whether an obligation has been 
discharged ? 

Now, Mr. Chairman, tliis matter has been before the courts of my 
State 

Mr. 'Bennet. Does the constitution of your State prevent a man 
coming in from other counties, and men who have become of age, to 
prove that they have paid taxes? T am not asking you about an 
exclusive method, but a method. 

Mr. Saunders. There is nothing in the constitution providing for a 
voter who comes from another county. In that connection, how- 
ever, I will say that the inquiry develops a feature of the general 
situation upon which I rely to sup|)ort my contention that presence 
on the tax list is not a prerequisite. This class of voters can not get 
on tlie list in the second county and may not have been on the list 
in the first county. Hence they must prove otherwise that they 
have paid their taxes. The legislature has provided a way, but it 
is not made the exclusive way. We are not concerned with the 
manner of proving that the prerequisite has been complied with, 
but with the fact that it has been adequateh^ established; hence my 
contention that on ]n-oof that a man's taxes have been paid he is 
entitled to vote. If the list is made primary evidence and a man is 
not on the list, he ought not to be denied the right to produce 
what may be called secondary evidence of payment. I asked a day 
or two ago what was the rule in the county of Grayson as to holding 
that a man must be on the list, and I understood the reply to be that 
in that county the judges required voters to be on the tax list. 

Mr. Carrico. No. 

Mr. Saunders. 1 misunderstood you. 

Mr. Carrico. I said as a general rule. 

Mr. Saunders. As a matter of fact the judges up there didn't 
hold anything of the sort as a matter of uniform rule. At one pre- 
cinct there were a large number of Re]3ublican voters who were 
allowed to swear themselves in on proof of tlie payment of their 
taxes. These voters were not on the list at all. (See Analysis, p. 
31, Hecord, pp. 296-298.) 

Mr. Carricx). And I think they were illegal voters. 

Mr. Saunders. Oh, well, you may as a matter of logic and con- 
sistency take that view now. I hold that they were legal voters. It 
simply goes to show that there was no uniform application of the 
princi])le that a voter must be on the tax list as a j^rerequisite to 
vote. The ruling was difi'erent at different precincts. 

Mr. Nelson. What is the rule of construction in your State as to 
helping men to vote or barring them from voting; is it to encourage 
voting or not ? 

Mr. Saunders. It is to eneourage voting, certainly. To-day in 
Virginia, as I have said, we have the simplest system in the world. 
Every voter registered prior to 1 904 lias the right to be aided in the 
preparation of his ballot; and a man who has registered since that 
time can read and write, so that he does not neetl any hel)). 

I am contending for a view of the constitution, and my contention, 
Avhich is in strict conformity with the usual principles of interpreta- 



166 PAKSONS VS. SAUNDEKS. 

tion of written instruments, will enable a man to vote who has actually 
paid his taxes, and can prove the fact. My opponent stands for a 
construction which will interpose obstacles in the way of a voter. 
This contention of contestant is an astonishing proposition, and I have 
no doubt that it will make this impression on the committee. 

The very point in question was drawn in issue in the corporation 
court of the city of Staunton. A local-option election was lield there, 
and a contest arose over the result. Judge Holt, the judge of the court, 
decided that it was not necessary for a voter to be on the tax list in 
order to vote. The paper which I now present contains his ruling. 
It is not a formal opinion, but is in the form of a letter in response to 
an inquiry from me.. I will read the letter, which is as follows: 

Replying to yoiu' letter of the 24tli, which has just reached me, I am sorry to report 
that I am unable to comply with yom- request for a copy of my written opinion in the 
local-option case. While I prepared one when the original petition came on to be 
heard on demrurer, yet when the cause was presented on its merits at the trial I was 
forced to pass upon questions as presented. The issue as to the meaning of that 
part of section 38 of the constitution, which declares that "the treasurer's list shall 
be conclusive of the facts therein stated," was not raised until then. The substance 
of my judgment was that this constitutional provision meant what it said and nothing 
more; that it could not be construed as presenting the sole criterion in determining 
the right of an elector to vote. It must be admitted that it can not govern the case 
of the "old soldier," and it seemed to me that if we admit that any exception can 
exist at all then we are driven to the conclusion that it is not " conclusive evidence 
of the facts therein stated," save in the limited degree indicated. 

The chairman of the committee asked me a question the other day 
which tended to show the hardship that would follow from the inter- 
pretation sought to be placed on the constitution by contestant. The 
question propounded was this: "Suppose a man has actually gone to 
the court and has actually, in conformity with this section, proved his 
payments and the court has made an order for him to go on the list 
and the clerk failed to put him on the list. Could that man vote?" 
According to these gentlemen's contention this voter could not vote. 
Looking to the list, the judges would find that his name was not there. 
Hence he would be excluded, although he had performed the require- 
ments of the law in respect to securing an order from court placing 
him on the list. That is one of the illustrations of hardship. There 
are many others that might be given, and they all support the con- 
clusion that the constitution never designed to put such a stumbling 
block in the way of voting as this alleged requirement to be on the 
tax list. 

Judge Holt continues: 

Not only may old soliders vote, whose names are not on this list registered as such, 
but an old soldier who did not register and claim his privilege at the time of registering 
may still upon proof vote without prepayment of poll taxes. Again, it is clear that the 
constitution makes provision for those who became of age during the current year and 
permits them, upon registration and payment of one year's poll tax, to vote. Such 
names should not appear upon the treasurer's list at all, for that list the constitution 
in terms says shall contain the names of those ' ' who have paid not later than six months 
prior to such election the state poll taxes required by the constitution during the three 
years preceding that in which such election is held." 

In this connection I want to call the attention of the committee to 
a state of facts existing in Carroll County, which absolutely stamps 
a large number of voters in that county as illegal voters, if contestant's 
contention is sound. There were a large number of voters in that 
county who were on the delinquent list. There is no provision for 
placing these people on the list that we have been discussing. Hence, 



PARSONS VS. SAUNDERS. 167 

if appearance on the tax list is prerequisite for voting, all of these 
voters must be treated as iliei2;al voters. If they were placed on the 
tax list, eitlier by the treasurer or the county clerk, that action on 
their part was ille<2;al. Hence if tliese voters were placed on the list 
tliey were ille<i;ally there, and if not on tlie list, they could not vote. 
There is no lafrislation on the* subject at all. A voter may be on the 
delinquent list for two of the three years for which he may be liable 
to pay taxes. The law provides that the delin(juent taxpayer shall 
pay those taxes to the clerk. There is no provision that the clerk 
shall put them on the list. There is no provision that these taxes 
may be paid to the treasurer, although in some instances this appears 
to have been done, nor is any authority given to the treasurer to place 
these parties on the list under any circumstances. There is abso- 
lutely no law to that efi'ect. 

Mr. Bennet. After a certain length of time a man who fails to 
pay his capitation tax is returned delinquent ? 

Mr. Saunders. Yes. 

jNfr. Bennet. And after that he must pay it to the clerk instead 
of the treasurer. 

Mr. wSaunders. Yes; the clerk gives him a receipt. But there is 
no way provided for him to get on the list on such payment. 

Mr. Bennet. Your contention is— unless your argument is cor- 
rect, your contention is — that there is no way a man once on the delin- 
quent list can get on the tax-paid list 'i- 

Mr. Saunders. He can not get on the list for the years for which 
he is delinquent. 

j\Ir. Bennet. He has to pay tlie treasurer for three successive 
years ? 

Mr. Saunders. Yes. A voter can get on the list only for the years 
for which he pays his taxes to the treasurer. I state this in the 
presence of the gentlemen who represent contestant, and w(^uld like 
them to correct me if the statement is not true. 

Mr. Carrico. Did not the clerk of Carroll County furnish the treas- 
urer with a list of the parties who had paid their delinquent taxes 
to him? 

Mr. Saunders. Cite me the law that authorized him to .do that. 
The law says the treasurer shall put on the list the men whose 
taxes have been paid in his office. Surely you do not undertake to 
say that when the constitution provides that the treasurer shall return 
a list of the persons who have personally paid through his office, he 
can certify to a list as "personally paid," when a number of those 
payments were not made to him but to another official ? If the pay- 
ments were paid to John Smith in the country, do you contend that 
the treasurer could make oath that they were personally paid to him 
or to his deputy? No; there is no provision in the law by which these 
persons can get on the list for the delinquent years. 

Mr. Thurston. They can go to the court. 

Mr. Saunders. They can not go to the court. There is no pro- 
vision allowing voters in this class to go to the court, or for the court 
to place them on the list. 

Mr. Bennet. It says that within thirty days after the list has been 
returned, and he has been omitted from the certified list under your 
contention 

Mr. Saunders. What certified list is that? 



168 PAESONS VS. SAUISTDEES. 

Mr. Bennet. The treasurer's. 

Mr. Saunders. And why is the treasurer given notice in that con- 
nection ? 

Mr. Bennet. If you are going to put a strict construction on it in 
one case you would have to in the other. 

Mr. Saunders. Oh, it is my opponent's contention that a man 
must be on the Hst. I simply maintain that there is no authority 
for the voters in this class to go to court or to be placed on the list 
by any official. I do not think that it is necessary for them to be on 
the list. But if you hold, by liberal construction, that a man who 
has paid his delinquent taxes can apply to the court to be placed on 
the list, I do not think you will have any difficulty in drawing the 
conclusion that I draw from section 21 and section 38 of the consti- 
tution, that a voter who has paid his taxes is not required to be on 
the list at all. Section 38 requires the treasurer to be given notice 
in those cases where he has negligently failed to place voters on the 
list who have paid their taxes to him. The treasurer is not con- 
cerned with the parties who have paid their delinquent taxes to the 
clerk. He is not required, in the first instance, to put them on his 
list. I have never heard — and I do not think anyone else has 
heard — of a voter applying to court to be placed on the list on the 
ground that he has paid his delinquent taxes to the clerk. Such a 
case as that, I venture to say, has never arisen in the State of Virginia. 
I resume, now, the reading of Judge Holt's letter. 

When we take up the question as to the right of those who have moved into the city 
to vote and who have paid their poll taxes as required by the law, but who are not 
on the treasurer's list, we find that the statute adopts the language of the constitu- 
tion and says that the treasurer's certificate to the effect that such poll taxes have been 
paid "shall be conclusive evidence as to the facts therein stated." (86-d of the code.) 
It must, therefore, be construed as a constitutional provision would be. Failure to 
present such a certificate is not conclusive evidence that the poll taxes have not been 
prepaid . 

I was further of opinion that even if so narrow a construction should be given to 
this provision of the code, the court should accept as a substantial compliance with 
the statute, tax receipts, they being in substance certificates from the treasurer to 
the effect that the taxes for wlaich they were issued had been paid. 

T\Tiether this be true or not did not seem to me to be a matter which I had to deter- 
mine at the, hearing. The judges may have permitted an elector to vote without 
having made proper inquiry as to qualifications. Their failure to do so, in my judg- 
ment, was not sufficient ground for rejecting his ballot. The question for me to deter- 
mine was not. Did they fail to require the presentation of satisfactory evidence as to 
his qualifications? but rather. Was he in fact entitled to vote? If lie was, then his 
vote should not be rejected. 

The proposition decided by Judge Holt is the very proposition that 
I have undertaken to present to this committee. I want to digress 
a moment. Many of the voters who are attacked by contestant 
were not challenged at the time they voted. It is a part of my conten- 
tion that all of these votes are strongly presumed to be legal, and 
that when contestant now assails them, he must exclude by his evi- 
dence all the suggestions according to which these votes may have 
been legal. See Arden v. Allen, 34th Congress. If there is a single 
suggestion left, according to which the vote could be considered to 
be legal, the committee will conclude that the contestant could not 
negative this suggestion, and the vote will be allowed to stand. 

As showing how far the House will go in support of the presumption 
that the sitting Member is entitled to his seat, I will call the attention 
of the committee to the Michalek case, which was decided some years 
ao-o in the House. 



PAliSOiSIS VS. SAUNDEliy. 169 

One ol" the (juestions tJierc was whether Michalek luid been natu- 
ralized, and there was a good deal ol' evidence to sliow that such was 
the fact, but the committee reportcHl as l'olh)ws in that comiection. 
There are five ways in any one of which ]\Iicluilek mi<i'ht have })ec()me 
a citizen of the I'nited States. To make a prima facie case against 
the sittin<i,' Member it would be necessary to examine the records in 
each of six courts, or to make in all eighteen separate examinations 
"of records relative to three persons. In other w^ords, the burden w^as 
on the attacking party to exclude the possilnlity that Michalek might 
be a citizen by submitting th<' collective evidence to that effect 
afforded by eighteen separate examinations. Until this was done, 
the presumption of citizenship applied in favor of }diclialek, and no 
prima facie case w^as made out, however favorable the examinations, 
short of eighteen, might have been to the claim of noncitizensiiip. 

This is certainly a strong case in support of the rule that a contestant 
alleging irregularity, in order to sustain his contentions, must exclude 
by his evidence all reasonable possibilities whereby the matter under 
investigation might be legal. (FTinds, vol. 1, p. 410.) 

Mr. KoRBLY. That is, the presumption is that that which l\as been 
flone has been rightfully done. 

Mr. Saunders. Yes. It is further presumed that the judges of 
election would not allow an illegal voter to vote. 

This same question of the tax list has been before the circuit court 
of my county in another contestetl-e lection case. A voter was chal- 
lenged on the ground that he was not entitled to vote because he was 
not on the tax list. It was conceded that ho had paid in ample time 
all the taxes for wdiich he was liable. The opinion of the court is a 
full and able one, and discusses the law of the case very elaborately. 

Opinion of Judge Cumjjbell: 

In this contest the ])reliminary question is raised whether this romplaint of an undue 
election can be entertained on the facts, the contestees averring; that S. Preston, one 
of the fifteen sio;ners of said comphiint, was not a qualified voter at said election for the 
alleged reason that his name did not appear on the certified and posted copy of the 
treasurer's list of those who had paid their state poll taxes as required by the constitu- 
tion and that such appearance of his name was indisi)ensable to his ri^ht to vote. 

It will be observed that the court states the exact contention that 
is under consideration by this committee. 

If this contention is sound, and S. Preston's name was not on said list, then the 
complaint must be dismissed, as strikins; his name from the complaint would leave 
only fourteen qualified voters signing- and the statute (('ode 1904, sec, 586a) requires 
the complaint to be made by fifteen or more qualified voters. Whether said Preston 
was in fact on said treasurer's list is a matter in dispute, but in the view Itake of the 
object and requirement of the treasurer's list provided for by the constitution, it is 
immaterial whether said Preston was or was not on it — 

The court is here referring to another question that is not before 
this committee, and has no sort of relevancy in this connection, 

provided he had in fact paid his state poll taxes as required. By section 18 of the 
constitution, "Every male citizen of the United States, 21 years of age, who has been 
a resident of the State two years, of the county, city, or town one year, and of the 
precinct in which he offers to vote, thirty days next preceding the election in which 
he offers to vote, has been registered, and has paid his state poll taxes, as hereinafter 
required, shall be entitled to vote for members of the general assembly and all officers 
elective by the people." 

Having the qualifications of age and residence, the citizen is given the right to vote, 
if he shall register and pay his state poll tax as required by the constitution. 



170 PAESONS VS. SAUNDERS. 

Section 19 provides for registration prior to January 1, 1904, and section 20 for regis- 
tration thereafter, the provisions of both of which sections are immaterial to this in- 
quiry, except that by the former the "old soldier" registration is provided for, and by 
section 22 he is exempted from payment of poll tax, as a prerequisite to right to register 
or vote; and by the later (section 20) it is provided that citizens having the requisites 
of age and residence prescribed by section 18 "Shall be entitled to register, provided, 
first, that he has personally paid to the proper officer all state taxes assessed or assess- 
able against him under this or the former constitution for the three years next preced- 
ing that in which he offers to register; or if he comes of age at such time that no poll 
tax shall be assessable against him for the year preceding the year in which he offers 
to register, has paid one dollar and fifty cents in satisfaction of the first year's poll tax 
assessable against him." 

Having thus provided the terms for registration, the constitution, section 21, pro- 
vides that "Any person registered under either of the last two sections shall have the 
right to vote for members of the general assembly and all officers elective by the peo- 
ple, subject to the following conditions." These conditions are two: First, that he 
shall personally pay, at least six months prior to the election, the state poll taxes with 
which he is assessed or assessable for the three preceding years. Second, that if he 
registers after January 1, 1904, he must, if physically able, prepare and deposit his 
ballot, without aid, on the printed form prescribed. 

It will thus be seen that so far the constitution (sections 18, 21) gives to every regis- 
ered voter who has personally paid his poll taxes as prescribed, the absolute and 
unconditional right to vote. 

If his right to vote is then to be made dependent on something further, it must 
appear elsew^here in the constitution and in terms as plain and unmistakable as the 
language of section 21, which says "he shall have the right to vote" if he has regis- 
tered and paid his poll taxes as required. An examination of the other sections of 
the constitution relative to the elective franchise discloses that it not only does not 
in direct terms qualify or restrict the rights of the registered voter as fixed by said 
section 21, but does not even deal with the subject inferentially — unless it can be 
said to do so by implication and argument under section 38. This section (38) deals 
with the duties of the treasurers, first, of courts and sheriffs in regard to making out, 
copying, posting, etc., list of those who have paid their state poll taxes within the 
time, for the years and in the manner required to entitle the registered voters to vote 
at the next election. 

The voter himself is given no powers nor subjected to any restrictions thereunder, 
except that if improperly omitted from the list he may, within thirty days from the 
posting thereof, apply to the court or the judge in vacation to have the list corrected 
and his name inserted. He is not expressly subjected to the penalty of losing his right 
to vote if he fails to have the correction made, nor does it seem to me is he subjected 
to such penalty by any fair implication from the language used. It would be carry- 
ing construction far, indeed, to hold that one who had fully qualified himself to vote 
and was given that right in plain and unmistakable words of the constitution, with 
no condition or qualification attached, could be deprived of such right by implied 
meaning given to words equally plain and carrying no such meaning on their face. 

The real object and meaning of this section I will discuss further on after considering 
the remaining paragraphs of section 38, which have been argued to have the effect 
of depriving the otherwise qualified voter of his right to vote. So much of the second 
paragraph as relates to the subject provides that ' ' the clerk shall deliver, or cause to be 
delivered, with the poll books, at a reasonable time before every election, to one of 
the judges of election of each precinct of his county or city a like certified copy of the 
list, which shall be conclusive evidence of the facts therein stated for the purposes of 
voting." 

What are the facts therein stated, or requhed to be stated? This is answered by the 
first paragraph of said section 38, by which the treasurer of each county and city is 
required to file with the clerk of the specified courts "a list of all persons in his county 
or city, who have paid not later than six months prior to such election, the state poll 
taxes required by this constitution during the three years next preceding that in which 
such election is held; which list shall be arranged alphabetically, by magisterial dis- 
tricts or wards, shall state the white and colored persons separately, and shall be veri- 
fied by the oath of the treasurer." 

The list, then, is conclusive of the following facts: (1) That the persons named have 
personally paid their state poll taxes, (2) that they were paid not later than six months 
prior to the election, and (3) that they were paid for the preceding years therein 
stated — presumably for the three preceding years for which they respectively were 
assessed or assessable — but not conclusively, for the list may not so state nor may the 
treasurer know whether each was so assessable, and so far as these facts qualify the 



TAHSONS VH. SAUNDKRS. 171 

persons listed to vote they can not be questioned. The words used are plain and would 
seem incapable of misunderstanding, and I am unable to see how their meaning can 
be stretched so as to conclusively deprive any qualified voter not in the list from 
exercising his constitutional right to \'ote, any more than it can be held to conclusively 
give every one listed the right to vote. The list can not surely be conclusive by 
inclusion of all who are on the list and also conclusive by exclusion of all who are not 
on it. 

I would say in tJiat connection that this Hst does not give the right 
to vote. A voter may be on this Hst and absohitely without the right 
to vote. The hst conclusively proves certain things, but it does not 
prove that you have been registered. A man can be on the list 
without having been registered. So the list per se, does not afford 
the right to vote. It is simply evidence of certain things. Quoad the 
facts stated in the list, it is conclusive evidence. 

If no facts are stated as to the latter, how can it be conclusive in any respect as to 
them, when the very language used is simply that it "shall be conclusive of the facts 
therein stated" — 

The view of this court, it will l)e seen, absolutely concurs with that 
of Judge Holt. 

(Reading further:) 

Nor do I see how the added words, ' " for the purpose of voting, ' ' can alter the meaning, 
for they simply have relation to "the facts therein stated," at^ to payment of the state 
poll taxes. 

The third (and final) paragraph of said section 38 provided that "further evidence 
of the prepayment of the capitation taxes required by this constitution as a prerequisite 
to the right to register and vote may be prescribed by law." I am unable to see at 
first glance what bearing this clause has or can have on the right to register, but that is 
apart from the question under consideration, and as to evidence of the right to vote 
it is ancillary to the clause just considered and can have no greater effect, and any 
enactment of the legislature thereunder will be subject to the same reasoning. 

The constitution having provided one conclusive means of showing, or enabling the 
voter to show, his qualification to vote, so far as prepayment of capitation taxes is 
concerned, authorizes the legislature to prescribe other evidence. It has seen fit to 
do so, I believe, in but one class of cases. By section 86d of the code it is provided 
that "In any case where a voter has been transferred from one city or county to an- 
other city or county, and has paid his state poll taxes for the three years next preceding 
that in which he offers to vote, or for any of said years, in any county or city in this 
State, such voter may exhibit to the judges of election the certificate of the treasurer 
of the city or county wherein the taxes were paid, showing such payment, and that the 
same was made at least six months prior to the election by the person offering to vote, 
such certificate shall be conclusive evidence of the facts therein stated for the pur- 
pose of voting." 

It was suggested that wdthout further legislation the voters who 
had ])aid their taxes to the clerk could apply to the court to be put 
on tlie list. If that contention is sound, then tlie voters who had 
paid their taxes in another county could make a like application to 
the court, and there was no occasion for legislation to provide for the 
issue of a certificate of payment, upon which they would be allowed 
to vote. Evidently, however, this view did not appeal to the legis- 
lature, so they proceeded to provide a convenient means of proving 
payment when taxes had been paid in another county. While a con- 
venient method, it is not intended to be and should not be held to be 
an exclusive method. The opinion proceeds: 

Here is evidence other than the treasurer's list, and it is made conclusive in the very 
words of the constitution, yet the name of the voter transferred may not be on the 
treasurer's list of either county or city. 

That is a point that I had not brought out. The man who comes 
in from the other countv mav not have been on the list in that covuitv 



172 PAitSONS vs. SAUNDERS. 

at all, and yet he conies into this county and does not get on the list 
in this county. If being on the list somewhere is essential, then there 
is a fellow who has escaped being on the list at all, and yet is allowed 
to vote. 

Mr. Carrico. Does not the constitution there fix the mode by 
which lie can prove that he has paid his poll tax ? 

Mr. Saunders. No; this is a statute of Virginia, providing the 
convenient method mentioned a moment ago. But as the judge has 
pointed out 

Mr. Carrico. The statute — does not that point out how he may 
prove it ? 

Mr. Saunders. Yes, certainly; but as the judge is pointing out a 
man may not liave been on the list in either county, and if presence 
on the list is a constitutional prerequisite the legislature can not flank 
that requirement; no enactment of theirs can relieve him from the 
necessity of being on the list somewhere. All of these troubles arise 
from the effort to give an additional purpose to the list. Treat it 
merely as conclusive evidence of the facts therein stated and not as 
exclusive evidence, and the way of the voter to the polls will be ren- 
dered easier. 

Mr. KoRBLY. A man could be on that list wrongfully? 

Mr. Saunders. Yes. 

Mr. KoRBLY. And it would be conclusive evidence, so far as voting 
is concerned, but not conclusive evidence so far as discharging his 
debt to the State is concerned. 

Mr. Saunders. That is my view; yes. The Commonwealth coidd 
recover the taxes if the voter had not, in fact, paid them. 

Mr. Thurston. Is it not a fact that the legislature has prescribed 
that in a particular case growing out of the necessities of the sit- 
uation the treasurer's receipt may be submitted to the judges of 
election ? 

Mr. Saunders. I do not recall any such provision. 

Mr. Thurston. The one you have just read. I mean the man 
that moves into the county. 

Mr. Saunders. No; that is a certificate of the treasurer of the other 
county. It is a special certificate. 

Mr. Thurston. But the legislature having provided that in a par- 
ticular case where he could not have been on the tax list 

Mr. Saunders. He might not have been on the list in the other 
county. 

Mr. Thurston. I am talking about the tax list at the polls. That 
in such a case, growing out of the necessities of the case, the legisla- 
ture has provided that he may exhibit a certificate of the payment of 
his taxes, that that particular class of persons may. 

j\ir. Saunders. Yes. 

Mr. Thurston. And does not that negative the idea that the legis- 
lature ever intended that any voter 

Mr. Saunders. We are not dealing with the legislature 

Mr. Thurston. I am talking about the legislature. 

Mr. vSaunders. But the legislature could not reach this other class 
of cases, because it has nothing to do wdth them. And, as the judge 
has pointed out, if you are required to be on the list by the constitu- 
tion, there is no power given to the legislature to modify or abrogate 
that requirement. 



PAKSONS VS. SAUNDERS. 173 

Mr. Thurston. Is this act of the leijishiture then unconstitutional ? 

Air. Saunders. No; the legislature simply [)rovi(les a mode of 
proof, but not an exclusive mode, for a certain class of cases. I do 
not think the statute is unconstitutional at all; I think it is all right. 

Mr. Thurston. The legislature has provided for a tax list. It has 
provided 

Mr. Saunders. For a certificate. 

Mr. Thurston. No, for a tax list — as well as the constitution. 
Now, it is provided that that tax list shall be conclusive evidence of 
the facts therein stated. 

Mr. Saunders. Yes. 

Mr. Thurston. Then it is further provided that in the case of a man 
from another county, who could not get on the tax list, that he may 
present a certain certificate from a treasurer which shall l)e receivefl 
as conclusive evidence of the fact that he has paid ins poll tax and is 
entitled to vote. 

j\Ir. Saunders. But 

Mr. Thurston. Is not that nccessaril}' 

Mr. Saunders. But 

Mr. Thurston. Wait a moment. 

Mr. Saunders. I beg your pardon; T thought you were through. 

Mr. Thurston. And does it not follow that the legislature having 
made the exception in the one case did not intend to make it in every- 
body's case ? 

Mr. Saunders. It seems to me that the legislature lias merely under- 
taken to provide a method of proving payment, as an aid to the voter 
and as a matter of convenience, just as the constituticjn contemplates 
■that the list will be an aid to the voter, not a stumbling block. If the 
voters who had paid in another county could g'et on the list in the 
second covmty by taking the steps provided for in section 38, as sug- 
gested by Mr. Bennet, it would b'^ noted that there would be no neces- 
sity for the statute. If the constitution contemplated that they 
should get on the list in this way then tiie statute is unconstitutional. 
I will now proceed with Judg<' Campbeir:^ opinion: 

Nor does said certificate slate that he is, nor could he be on any such list if he has 
resided in different counties, during the next three preceding years, for the treasurer 
of neither could know that he had paid the state capitation taxes, or had paid then per- 
sonally, except in his own county, and hence he could not put him on the list required 
to be made up of persons who had personally paid the poll taxes with which they were 
assessed and assessable for the next preceding three years to the election and at least 
six months prior thereto. He could not know the facts. 

If the second paragraph of section 38 of the constitution was intended to make the 
treasurer's list the sole evidence of the prepayment of the required state capitation 
taxes for the purpose of enabling a registered voter to vote, will it be contended that 
the very next paragraph giving the legislature power to prescribe "further evidence" 
of such prepayment as a prerequisite to voting was intended to give the legislature the 
power to annul such constitutional pi'ovision? 

Yet such would be the effect if said section 86 of the Code providing for a treasurer's 
certificate as evidence on which to have the right to vote, is constitutional. Certainly 
it seems to be in exact conformity with the authority given by the constitution, and if 
the evidence furnished by the treasurer's list and that furnished by the treasurer's cer- 
tificate are both to stand, it can only be because the treasurer's list is not intended to 
be the exclusive evidence of the payment of the capitation tax for the purpose of voting. 
If it is argued that it is an exception to the rule, then the legislatm-e can go on multi- 
plying exceptions under the same authority until the treasurer's list would be but one 
of many evidences of the payment of the requisite poll taxes "for the purpose of vot- 
ing." Nor does this take account of other exceptions now existing, such as the "old 
soldier," who can vote if registered, yet need not be on the treasurer's list, and one 



174 PARSONS vs. SAUNDERS. 

who comes of age at such time that no poll tax shall have been assessable against him 
for the year preceding the year in which he offers to register, but who has registered 
under section 20 of the constitution and can not be on the treasurer's list, yet is entitled 
to vote by vii'tue of section 21. 

Again, if the treasurer's list is the only legal evidence — with the exceptions above 
named — of the persons entitled to vote, there would be two classes of persons who, 
though qualified in every other respect, could not vote — first, those who had been re- 
turned delinquent for nonpayment of capitation taxes, and who, under section 608 of 
the Code, can thereafter pay them to the clerk of the court. He can not pay them to 
the treasurer, and the treasurer can not put him on his list, but the clerk is required to 
enter "in a book to be kept in his office for the purpose," the name of the party paying, 
the amount paid by him, and the date of such payment. By paying six months prior 
to the next election, the voter, if qualified by registration, would clearly be entitled to 
vote under section 21 of the constitution, would show it by the clerk's records, if not by 
his receipts, and yet has no way to get on the treasurer's list, and if that is essential, 
is deprived of his right to vote though he has done everything he can do or is required 
to do. 

Second. Those who have paid the required capitation taxes to the treasurer, within 
the required time, but have been erroneously omitted from his list, and from any 
cause or causes have not applied to the court or judge within thirty days from the post- 
ing of the list to have it corrected and his name entered thereon as provided by sec- 
tion 38 of the constitution and section 86b of the Code. By section 38 of the constitu- 
tion the treasurer must file the list (of those who have paid their state poll taxes as 
prescribed) with the clerk at least five months before each regular election, the clerk 
within ten days from its receipt, must make and certify a sufficient number of copies, 
and deliver one copy for each voting place to the sheriff of the county or sergeant of the 
city, who must without delay post one at each voting place, and within ten days from 
the receipt thereof must make return on oath to the clerk, of the places and dates of 
each respective posting 

The court now goes into details : 

"And toithin thirty days from such posting any person improperly omitted from such 
list may apply to the court or judge to have the error corrected and his name entered 
on the list. After such thirty days there is no way provided to correct the list, though 
at least three months and ten days must yet elapse before the day of election. The 
treasurer might file the list six months before the election, though only required to do 
so at least five months before, and thus only the utmost vigilance of the voter in 
watching through a period of fifteen days for the filing and then the posting of the 
list would enable him to certainly get on such list if he had been improperly omitted 
therefrom. 

He might be absent from his county or city dm-ing the entire period of thirty days 
allowed for correcting the omission, or might otherwise without his fault be ignorant 
of the time of posting and lose the benefit of the thirty days for correction, and yet 
he would lose his right to vote if the presence of his name on the list is the sine qua non 
of his right to vote. This, too, though from three months and ten days to four months 
and ten days must yet elapse before the date of election. An interpretation of the 
meaning of section 38, which would exclude from voting these two classes of persons 
who had complied with the conditions of section 21 of the constitution, would be harsh, 
illogical, and unreasonable. 

Such an interpretation would place an obstacle, insurmountable as to one class, in 
the way of the voter exercising his right to vote, given by section 21 — would hamper 
him, not aid him. 

My understanding of the objects of section 38 is quite different — that a principal 
object is to aid the voters and the judges of election in casting and receiving, respec- 
tively, the vote at the election and not to make a "hard and fast" rule to the detri- 
ment of the voter's rights. 

The qualified electorate under the new constitution being greatly limited and 
conditions being attached to the exercise of the elective franchise as to payment of 
state capitation taxes — requiring personal payment, payment for certain years, and 
payment at least six months prior to the election — it is quite manifest that some 
general and conclusive rule as to the evidence of these facts had to be provided to 
satisfy the judges that the persons offering the vote were entitled to do so, and to 
save the latter from the trouble, delay, and possible difficulty of proving the neces- 
sary facts to the satisfaction of the judges of election by separate evidence in each 
individual case. An election under such conditions would have been burdensome 
to judges and voters alike, troublesome, protracted, and possibly difficult of com- 
pletion at precincts with a large registration. Hence the provision by section 38 for 



PARSONS VS. SAUNDERS, 175 

the treasurer's list of those qualified by payment of poll taxes, the posting and pub- 
lishing of same for both general and special information and notice, the right to 
amend by having omitted names entered thereon, and the making of such list con- 
clusive evidence of the facts therein stated for the purpose of voting. The registra- 
tion list and the treasurer's list — subject to the right and duty of challenge of any 
voter under section 126 of the Code— thus furnish the judges of election substantially 
conclusive evidence of the right to vote of actually or approximately every qualified 
voter. Those who by error or inability are not on, or can not get on, the treasurer's 
list for the reasons hereinbefore specified would be left to the inconvenience of fur- 
nishing in each case evidence satisfactory to the judges of election of their right to 
vote. 

For the reasons given I am of opinion that the qualified voter has the right to fur- 
nish such evidence and to vote thereon, and that it is not essential and not intended 
by the framers of the constitution that ho should be on the treasurer's list as a condition 
to his right to vote. 

Mr. NelsciTi asked me whether we wanted to make it easier for tlie 
parties to vote. In my view^, that was the purj)ose of the constitu- 
tion, bnt if that instrument is construed in conformity with con- 
testant's view it will Itamper, not aid. the voter. 

Mr. Nelson. Is it not a general rule all over the country that the 
requirements shall be interpreted favorably to votino; ? 

Mr. Saunders. Yes; that is the general proposition. 

Mr. Carrico. What is the date of that opinion^ 

Mr. Saunders. It was rendered at the November term of the 
Franklin circuit court, November, 1909. 

Mr. Carrico. Our courts have held the opposite. Juclge Jackson 
and Judge Massey have held the opposite in an oral opinion. 

Mr. Saunders. Those rulings have not been published. I wish to 
file as a part of this record Judge Campbell's opinion. 

Mr. Bennet. Has there been an appeal from those decisions to a 
higher court ? 

Mr. Saunders. No. The rights of the voter were enlarged by this 
ruling. He was satisfied on this point. 

Mr. Bennet. A man that is beaten in a law suit is always liable to 
appeal. 

Mr. Saunders. But the question presented was the right of a voter 
to vote who had paid his taxes but who was not on the list. That 
was the issue presented to the courts. I don't know, of course, 
whether the opinions referred to by Mr. Carrico were well-considered 
opinions. They may have been what are commonly called oflPhaiid 
or horseback opinions. The opinions which I cite relate to a point 
which was vital to the case in which it was considered. This feature 
of these cases was exhaustively argued, and in the opinion at least of 
the court in Franklin Coimty, is elaborately disciissed. 

Mr. Carrico. As there was no written opinion in this case cited by 
Judge Jackson, I wnll state that there was something like 150 names 
left off the poll-tax list in Wythe County. Notice was given and the 
judge w^as apphed to to put these men on the list. The notice was 
given within thirty days, but the application w^as made to him after 
the thirty days had expired. He held in that case that he could not 
consider the application because the application was not made there 
within thirty days, as well as the notice being given to the treasurer, 
and that therefore these parties could not get on the list, and, further, 
that they were not entitled to vote. 

Mr. Saunders. That would be, of course, an incidental holding on 
the part of the court so far as the right to vote was concerned, be- 
cause that question was not before the court. Naturally the court 



176 PAESONS VS. SAUNDERS. 

would not give the same thought to that question when considering 
the right to go on the list as was given to him by the other judges when 
that question was presented to them for decision, as a vital feature of 
the case before them. 

Mr. Nelson. You refer to your judges. 

Mr. Saunders. I mean my circuit judge, and the corporation 
judge for Staunton. 

Mr. Nelson. Do you mean that there is any conflict between 
counties or parties on this question ? 

Mr. Saunders. None in the world. There may be differences of 
judgment on the part of the judges; there is no conflict of jurisdiction. 

Mr. Nelson. Of counties or parties, you mean; and simply a judge 
happens to decide one way in your county and otherwise in Mr. 
Carrico^s county. 

Mr. Saunders. That is true, but the point decided in my count}^ 
in an election contest does not appear to have been litigated in 
Grayson. 

Mr. Carrico. Yes, sir. 

Mr. Saltnders. We have man}^ nisi prius courts in Virginia. We 
call them circuit and corporation courts. Their jurisdiction is ex- 
tensive. 

Mr. Carrico. The judge will agree with me that our courts of 
appeal have never passed on it. 

Mr. Saunders. Yes, that is true. 

So much for my contention as to the tax list, which I think is 
fairly established. I wish now to present the law proper to be ap- 
plied to the consideration of the contested votes. It seems to have 
been the idea on the part of the contestant that ail that it was neces- 
sary for him to do in this contest was to suggest a doubt in connec- 
tion with some particular vote, and forthwith the burden of proof 
would be shifted to such an extent that contestee would be charged 
with the necessity of proving that the voter under challenge was 
qualified. 

Mr. Thurston. One moment, before you pass from this other 
question. You have asserted that the young men becoming of age 
and who would be required to pay $1.50 apiece poll tax could not be 
on this tax list. 

Mr. Saunders. That was after the 1st of May. He could be on 
it if he paid at an earlier period of the year. 

Mr. Thurston. He does not have to pay it if he becomes of age 
in the year. 

Mr. Saunders. Oh, yes, he does. 

Mr. Thurston. Oh, no. 

Mr. Saunders. Not contradicting you on other propositions, I 
think when it comes to a matter of Virginia law that I will venture 
on that liberty. 

Mr. Thurston. He has to pay $1.50. 

Mr. Saunders. That is all that is required of him. 

Mr. Bennet. Then if he becomes of age, say, in July of the year 

Mr. Saunders. If he became of age on the 31st of October he 
would have to pay the capitation tax to vote. 

Mr. Bennet. When and where would he pay it ? 

Mr. Saunders. That is prescribed by the statute. 

Mr. Tou Velle. How would he fret on this list ? 



PARSONS VS. SAUNDERS. 177 

Mr. Saunders. He would not get on the list. 

Mr. Thurston. The statute has provided i'or his case and also lor 
the case of the man who moves into the precinct. 

Mr. Parsons. The question I wish to ask you there is this. In 
case of a young man, is not the list already printed and sent out ? 

Mr. Saunders. That is what I told Senator Thurston. If he paid 
prior to the 1st of May he would be on the list, but if he paid to the 
treasurer subsequent to that date he woidd not be on the list. 

Mr. Thurston. And in that exceT)tional case the law gives him 
the right to use the treasurer's certificate instead of the list ? 

Mr. Saunders. Section 26 of the constitution merely gives him 
the right to vote on the payment of $1.50. It does not provide how 
the payment shall be established. 

But to take up the other matter. Suppose a man is admitted to 
vote who has not been challenged. What are the presumptions in 
favor of that vote? Here is what the law says in tliat connection: 

All votes recorded on the poll list should be presumed good, unless impeached by 
evidence. (Potterfield v. McCoy, 14th Cong.) 

Votes having been received at the time of the election, the petitioner is entitled to 
them, unless they are proven to be bad. (Newland v. Graham, 24th Cong.) 

It is the settled law of elections that where persons vote without challenge it will be 
presumed that they were entitled to vote, and that the sworn officers of the election 
who received their votes performed their duty properly and honestly and the burden 
of proof to show the contrary devolves on the person denying their right to vote. 
(Findley v. Bisbee, 45th Cong.) 

If a person votes at an election, his vote is presumed under the law to be legal, until 
the contrary is proven in a legal way, for two reasons: First, the acts of the officers are 
presumed to be honest and correct, until the contrary is made to appear. Second, the 
presumption is that a man would not cast an illegal vote. (Id.) 

A vote accepted by the judges of an election is prima facie legal. Before it can be 
thrown out, it must be shown that it was illegal, that is to say, the presumption of 
legality must be overcome by a clear preponderance of competent evidence. By com- 
petent evidence is meant such evidence as would be admitted before a judicial tribunal 
on the ti'ial of the issue, unless the nature of the issue would render a relaxation of the 
rule necessary and proper. (Smith v. Jackson, 51st Cong.) 

Every reasonable intendment should be indulged in favor of the voter. (Craig v. 
Stewart, 53d Cong.) 

Where votes were refused on election day by the judges, the presumption is that the 
judges did their duty, and the votes were legally excluded. (Garrison v. Mayo, 
48th Cong.) ' _ 

The evidence that an election officer erred in rejecting a vote must be clear and con- 
clusive. (Frost V. Metcalfe, 45th Cong.) 

Where suggestions, according to which a man may have been a legal voter, were not 
negatived by the evidence, it was presumed that they could not be, and the vote was 
allowed to stand. (Arden v. Allen, 34th Cong.) 

Suppose we apply the principle of presumptive regularity to some 
of the votes which contestant has challenged. 

Take the most common form of challenge, that of a voter who 
appears to have voted, but who is not on the tax list for that district. 
Does that fact prove that this was an illegal voter, and shift the 
burden of proof? Not at all, though my counsel in the counties 
seemed to think that this mere suggestion required them to take an 
immense amount of counter testnnony involving a ^reat deal of 
trouble and an amount of expenditure far greater than will be covered 
by my allowance for costs in this case. 

The mere fact that a voter was not on the tax list for three years, 
even if that was a prerequisite, is far from proving that he was an 

38069—10 12 



178 PAESONS vs. SAUNDEES. 

illegal voter. He may have been an old soldier, and not liable for 
poll tax. He may have paid his taxes in another county. He may 
have become 21 since May 1 of the year. He may have paid his 
delinquent taxes to the clerk. He may not have been liable for 
taxes any further than he was on the list, say, for one or two years, 
as the case might be. Until all of these possibilities are excluded 
by the evidence of the contestant, the vote will be allowed to stand. 
And if presence on the list was not a prerequisite, contestant in 
addition would have to prove that the voter had not paid his taxes. 

Let me show you how this record is made up. The mere fact that 
a man is not on the tax-paid list is in numerous cases considered to be 
sufficient authority for the contestant to charge that he is an illegal 
voter, and voted for me — without even undertaking to prove that 
the voter is a Democrat, much less that he voted for contestee. It 
has given me a great deal of trouble to run down in the Record all 
the voters who have been challenged in this way, and to group the 
evidence relating to them. 

Contestant charges that at Lindsey's precinct ''D. W. Harrison, 
registrar for the precinct, voted for contestee, and was not tax paid." 

There is not a particle of evidence in the Record that Harrison 
was a Democrat, much less that he voted for me. Does contestant 
maintain that the mere fact that this man was a registrar sufficiently 
prove that this man was a Democrat, and voted for me ? Do you 
rely on the fact that he was registrar to prove that he voted for me, 
and that he was a Democrat ? Is that your contention ? 

Mr. Paesons. There is not a Republican registrar in the fifth district. 

Mr. Saundees. Well, there may not be just at this time, but the 
Record shows that in the county of Grayson at Troutdale there was a 
Republican registrar for a number of years. (See Record, Pasley's 
testimony, p. 307.) 

Mr. Paesons. I say at this time. 

^Ir. Saundees. Possibly not at this time, though I can not say as 
to that. But if there have been Republican registrars, why may not 
this man Harrison be one ? For years at Troutdale there was a Re- 
pubHcan registrar, a man named Greer. 

The Chaieman. Were there any at this election ? 

Mr. Saundees. I don't know whether there were or not. I do not 
know the pohtics of the registrars in the district, which is a large 
one, but it was brought out that for years the registrar at Troutdale, 
a large Repubhcan precinct, was a Repubhcan. 

The Chaieman. Do you know of any now ? 

Mr. Saundees. I don't know the pohtics of any of them, except 
in my own county. Contestant merely proved that Harrison was a 
registrar, and not on the tax list. He did not even prove that he 
voted. Is the committee going to hold that such evidence proves 
that Harrison was a Democrat and voted for me ? If that sort of 
proof goes, contestant could prove his case without difficulty. 

Mr. Nelson. Speaking of that question, of Democrats and Repub- 
hcans, I would like to have you touch upon this question, and per- 
haps you will touch upon it anyway: I would like to know how can 
we judge how they gave their votes from the mere fact that they 
are proven to be Republicans or Democrats ? In my section of the 
country the fact that a man is considered a Democrat or a Republi- 
can does not necessarily show how he votes at any particular election. 



PAKSONS VS. SAUNDERS. 179 

Mr. Saunders. No, you can not prove that a man voted for the 
Democratic or Repubhcan candidate merely because in a general way 
he is a Democrat or Republican. At the last election at my own 
precinct I got 161 majority, while Bryan received only half that num- 
ber. As a sort of general proposition, you might say that the Demo- 
crats vote the Democratic ticket and the Republicans vote the Re- 
publican ticket, but there are man}' departures from regularity. 
The subcommittee which counted the ballots will recollect that they 
found all sorts of split tickets — Bryan-Parsons ballots, Taft- 
Saunders ballots, and so on. This was true at many points in the 
district. 

Here is the evidence as to this man Harrison (I read from the 
Record, page 445): 

Q. WTio is the regularly appointed registrar for I-indsey voting precinct in Pine 
Creek magisterial district? — A. At this present time? 

Q. Yes. — A. I think it was G. W. Harrison; I think. 

Q. That was for the year 1908? 

A. I am not positive about that, but I think G. W. Harrison was the last one. 

Q. Examine the tax-paid list and see if he is a qualified voter for that year. See 
if he appears on the tax-paid list for Pine Creek as a qualified voter in the November 
election, 1908. 

A. I don't find his name on the tax list of 1908. 

Contestant does not find this man's name on the tax-paid list, 
and thereu])on, on the strength of that and the fact tliat he is a regis- 
trar, the brief claims that Harrison voted for me. Ex uno disce 
omnes. 

However, let me present to you another illustration or two of the 
reckless manner in w^hich votes are claimed to be illegal and then 
charged to me. Come to the county of Franklin. I will take a case 
or two from that county. 

"W. B. Wood voted for contestee without payment of tax as the 
law required." (Contestant s brief.) Well, that is true, and Wood 
was an incompetent voter. T do not mean to say that his incompe- 
tency carried anv moral obliquity with it. This man had not paid 
his taxes, and was an illegal voter. But that came about in this way: 
He had been relieved of payment of taxes for physical disability. 
He had been relieved by the court under the old constitution. Under 
the new constitution the registrar thought he was still exempt, so he 
was allowed to register as exempt and has continued to vote to the 
present time, without the payment of taxes. But the registrar was 
in error in this. I agree with contestant that Wood had no right to 
vote. But there are seven Republicans in Franklin who have been 
voting under precisely the same circumstances as Wood. (See 
Analysis, p. 123.) 

Take another case [rc^ferring to the brief of the contestant]. Take 
J. C. James. That is an interesting case, by reason of a statement 
tliat Mr. Carrico nia(]e the other day. 

He was complaining that a man named Quillan, who, he said, had 
presented his transfer on election day, was not allowed to vote. 
Well, the judges erred in refusing to receive Quillan's transfer, but 
the judges in Franklin who received transfers on election day are 
attacked by contestant's counsel in that county. James's case is one 
of these cases. There are others. 

The statute which I have cited in the analysis (see Analyis, p. 6, 
sec. 125), expressly gives a voter, moving from one district to another 



180 PAESONS VS. SAUNDERS. 

within the county, the right to give in his transfer on election day, 
have the same entered, and vote on it. Contestant charges that 
J. C. James voted for me. The evidence does not show anything of 
the sort. It does not even prove that he is a Democrat. J. C. 
James voted on a transfer which was entered on election day. He 
is challenged on that ground. The action of the judges in admitting 
James to vote was clearly legal. 

Mr. Carrico. He was transferred four or five days before the 
election. 

Mr. Saunders. The evidence does not show that. His transfer may 
not have come into his possession until three or four days before the 
election.- Transfers are frequently secured at the proper time by the 
party managers, and not delivered until within a week or so of the 
election if it is not convenient to do so. There is no reason why they 
should be delivered sooner. 

J. C. James, P. B. Stanley, and his son, and W. A. Mills are all 
challeged on the ground that their transfers were received on election 
day, and yet contestant complains because Quillan's transfer was 
refused under the same circumstances. As a matter of fact it was 
legal to receive the transfers of the two Stanleys, Mills, and James, 
and illegal to refuse Quillan's. 

The testimony regarding James will be found on page 141 of the 
record. 

He was not on the books, and the judges put him on the books. 

Take the case of Cleve Coleman. 

Mr. Carrico. I have found that now, and would like to read it just 
to show you that my contention was correct. This is page 141 of the 
record. 

A. I objected on the ground that he voted on a transfer brought in on the day of 
election, and on the Saturday or Monday before election, when he was hauling poles 
down to my siding, I asked him was he coming to the election on Tuesday, and he said 
he reckoned not; he didn't have any vote. And I just asked him in a jocular way 
if he had been dehorned, and he says no; he says, I haven't my transfer; I have been 
voting in Dillon's Mill, and says I haven't been transferred. He says Mr. Dillon 
promised to send my transfer down there to vote for his brother. I promised him to 
vote for his brother, but he never done it in time for last election, and just neglected, 
and I haven't got it by this time. I don't reckon I will be at this election. On 
election day, at about two o'clock in the evening, he came in with his transfer; I 
think the date of his transfer was the 28th of September. 

Mr. Saunders. There is no difference between us as to the testi- 
mony. [Reading from the record of the testimony, p. 141 :] 

Cross-examination by Mr. Dillon: 
Q. Your statement is, then, that Mr. James presented himself to the judges with a 
duly-issued transfer, dated September 28, 1908? 
A. That is my recollection. 

Mr. Saunders. Garst, the witness, and Republican judge at that 
point, put the objection on the ground that the judges had no right 
to enter any transfers on election day. Read the conclusion of 
Garst' s testimony. 

Mr. Carrico. No, I do not raise it on that ground. 

Mr. Saunders. Well, contestant's counsel in Franklin County put 
the objection on that ground. 

Mr. Carrico. I raise it on the ground that if he didn't have it a 
week before that, that it looks like it might be dated back. 



PARSONS VS. SAUNDERS. 181 

Mr. Saunders. Well, there is no evidence whatever to support that 
contention. It is a very common thing — I have no doubt it is done 
in your county and in every county in the district — with respect to 
transfers for the party chairmen to go ahead and secure the transfers 
in time. Later they send them to the parties and it makes no 
difference whether the parties receive them or on before the day of 
election. They can be entered at any time up to the last minute of 
the day of election. 

Now, to get back to Cleve Coleman's case. Contestant claims that 
Cleve Coleman voted for the contestee, and gives one reference to sup- 
port the charge. 

The Chairman. What page ? 

Mr. Saunders. Pages 145 and 146 of the testimony. There are 
about six references that ought to be given in this connection, and 
which are given on page 96 of the analysis. So far from this man's 
voting for me, the man himself swears that he voted for Parsons. 

Mr. Parsons. Woidd you mind telling the committee in that con- 
nection that he told just before he went in, that he said he intended 
voting for you, and took a Democratic judge in to mark his ballot? 
I ask you to read the evidence. 

Mr. Saunders. Do you suppose the committee will regard any- 
thing of that sort, when the man himself swears that he voted for you ? 
You tried to prove that he was a Democrat and failed. He was an 
independent. Of course the committee will read the evidence. They 
will find all the references to the witnesses on page 96 of the anal3^sis. 

These cases are typical of the reckless manner in which contestant 
alleges that voters are disqualified, or that disqualified voters voted 
for me. In Coleman's case the man himself says he voted for my 
opponent, jet he is charged to me. Contestant seems to think 
that when he proves that a Democratic judge marked a man's bal- 
lot he has adduced evidence that the voter voted for me. The fact 
shows nothing of the sort. The conclusion drawn is utterly unwar- 
ranted. The record shows that in many instances the Republican 
judges marked the ballots of both Democrats and Republicans. And 
why should they not ? For instance, at Martinsville, it appears from 
the testimony of English, the Republican judge, that he marked 
the ballots of lots of Democrats as well as Republicans. Analj^sis, 
page 40. At Dillons Mill, a man named Green voted for Parsons, but 
got the Democratic judge to mark his ballot. At the same precinct, 
Tinsley, the Republican judge marked the ballots of many Democrats. 
Analysis, page 40. In Grayson, Spencer, a Republican judge, marked 
the ballots of many Democrats, and one of them, a man named 
Mikel, voted for Parsons. Analyis, page 40. 

This evidence clearly shows that you can not deduce the character 
of a man's ballot from the political affiliations of the judge who 
marked his ticket. 

I want to call the attention of the committee to an interesting 
situation at Hillsville, in Carroll County. There are four voting 
districts that run together in Hillsville, and the point of convergence 
is the county court-house. The town of Hillsville is all around the 
court-house, and the voters of the four precincts all vote in one 
room in the court-house. There is a young man in Hillsville who 
lived for quite a number of years in one part of Hillsville, which was 
in one precinct. Later he rented sleeping quarters in another part 



182 PARSONS VS. SAUNDEES. 

of the town, which was in the second precinct. He took his meals in 
still another portion of the town, which was in the third precinct. 
He kept his taxes paid up jn the first precinct and voted there in the 
court-house. Upon this state of facts he is challenged as an illegal 
voter, but it is not shown that he voted for me. 

Mr. Carrico. He neither voted where he ate, nor where he slept; 
he voted in the third precinct. 

'Mr. Saunders. Wliat difference does that make? He ate at one 
place and by walking across the street he was in another district. 
In that district he kept his taxes paid up and maintained his resi- 
dence. Should he have voted where he ate, or where he slept, or 
where he practiced law, which was in all three precincts, or where 
he paid his taxes ? 

The Chairman. I want to ask about section 21 of the constitution. 
I don't know certainly whether it is 21 or not, but the provision in 
reference to registering. 

Mr. Saunders. That is the section you have in mind. 

The Chairman. It says, provided if they register after the first day 
of January, 1904, he shall, unless physically unable, prepare and de- 
posit his ballot without aid, on such printed form as the law may 
prescribe, but no voter registered prior to that date may be aided in 
the preparation of his ballot. 

Mr. Saunders. I stated that provision heretofore. 

The Chairman. Why should he have aid ? 

Mr. Saunders. Simply because the constitution provides that 
one class shall have aid and the other shall not. 

The Chairman. But what excuse is there for it, what reason is 
there for it ? 

Mr. Saunders. I am glad you asked me that question. The differ- 
ence was made by the constitution for the following reasons: Many 
of the men who registered prior to 1904, can not read or write. Some 
of our best citizens among the older generation, men of good property 
and fine capacity, owing to lack of early opportunity, can neither 
read nor write. 

The Chairman. Why should there be a discrimination between a 
man who could not read and write 

Mr. Saunders. It is not a discrimination. It is merely a saving 
provision in the interest of an older class. Under our present policy 
in Virginia we are seeking to bring about universal education, cer- 
tainly in reading and writing. As an inducement to that end the 
gift of the ballot is made dependent upon the capacity to do both. 
Moreover, to make a man disposed to pay his capitation taxes, 
which are made a prerequisite to voting, every dollar of that tax is 
appropriated for the cause of public education. The conditions 
under which the older generation grew up were different. Educa- 
tional opportunities were inadequate, but there is no reason why any 
man who attains his majority at the present time should be illiterate. 
Our educational facilities for everyone are ample and abundant and 
continually expanding. 

Mr. Howell. He would not be able to register unless he could read 
and write. 

Mr. Saunders. No. That is the reason he does not need any aid 
in marldng his ballot. 

Mr. Bennet. Can not even an old soldier register now, if he can not 
read and write. 



PARSONS VS. SAUNDEKS. 183 

Mr. Saunders. No. 

Mr. Carrico. How can an old soldier register now ? 

Mr. Saunders. He can not, if he is unable to read and write. But 
they are [)ractically all ivgistered. 

Mr. Bennet. So if either a Union or Confederate soldier came into 
Virginia from Tennessee, we will say, and he could not read or write, 
he could not registei'? 

Mr. Saunders. No, he could not register. But as a matter of fact 
they have all been long since registered. 

Now, I want to call your attention to one further feature of this 
case which crops out at many points. It is the alleged disqualification 
of nonresidence, which is imputed to many voters. 

Contestant seems to think that a voter can vote only where he hap- 
pens to be at the time of election; that if he is away from his domicile 
in the pursuit of his trade or business or ])rofession, if he is away trav- 
eling oi' prospecting or doing any one of the many things which do 
not amount to the acquisition of a domicile elsewhere, he has lost his 
domicile where he had theretofore maintained it and paid his taxes, 
and can not return there to vote. But it is not an easy matter in 
Virginia to prove that a man has lost his domicile. 

In that respect our Virginia law is a pretty stiff proposition. I 
desire to call the attention of the committee to that law: 

As used in the Virginia election laws, residence is substantially synonymous with 
domicile, which is residence at a particular place, accompanied with positive or pre- 
sumptive proof of intention to remain for an unlimited time. A domicile once 
acquired continues to exist until another is acquired elsewhere; to effect a change of 
domicile there must be an actual abandonment of the former one, coupled with the 
intent not to return to it, and also a new domicile acquired at another place, which can 
only be done by the union of intent and personal presence. Mere change of living 
place, however long continued, does not of itself constitute change of domicile; and 
the burden of proving abandonment of the old and the acquirement of the new is upon 
the party making the charge. In case of doubt the court should resolve that doubt in 
favor of the vote as cast, and counted, and full proof should be required to vitiate a 
vote when received and counted. 

That is from the Virginia Law Register, page 514, Bruner v. 
Bunting. 

Residence within the meaning of the suffrage laws is clearly distinguished from the 
same word as used in the popular sense, to denote merely the act of abiding or dwelling 
in the same place. (Id.) The decision of the judges of election, in regard to the 
residence and qualifications of voters, will not be rejected upon merely conflicting 
testimony. (Anderson v. Reed.) Mere absence, however, long continued, will 
not make a change of domicile. (Lindsay v. Murphy, 76 Va., p. 428.) To consti- 
tute a new domicile both residence in new locality and intention to remain there are 
indispensable. (Id.) 

Mr. Nelson. What point are you trying to emphasize by reading 
that ? 

Mr. Saunders. There are many cases in the record in which con- 
testant charges that a voter is disqualified on the score of nonresi- 
dence. When you come to consider these cases in connection with 
the law which I am citing, you will find that the evidence to prove 
nonresidency in practically all of the cases is grossly inadequate. I 
wish I had time to take up some of these cases in detail. 

If a voter at the time of election happened to be working in 
another district, though he returned to vote where he was registered, 
and paid his taxes, contestant charges that he was a nonresident. 
There is hardly a case in the record as to which contestant has fur- 
nished any reasonable proof, much less sufficient proof in conformity 



184 PARSON'S VS. SAUNDERS, 

with the law of Virginia, to show that the voter whom he challenges 
has acquired another domicile elsewhere under the law of Virginia, 
to effect a change of domicile, a new domicile must be acquired else- 
where. (Bruner v. Bunting supra.) 

Mr. Bennet. Is not residence a mixed question of fact and intent ? 

Mr. Saunders. That is true; but the requirements of our law with 
respect to losing a residence are more stringent, perhaps, than the 
requirements in any other State. 

The question of residence is one of intention and the old residence is not lost so 
long as the animus revertendi remains. 

SSA domicile once acquired is presumed to continue until a new one is shown to have 
been gained. (Starke v. Scott, 78 Va., 780.) 

This change of domicile is to be established by the proof of the party asserting it. 
(Id.) Residence is chiefly a question of intent, known alone to the party. (Frost v. 
Metcalfe, 1 Ellis, p. 290.) 

The mere statement of a witness that a man is a nonresident, without giving the 
facts to support the statement is not sufficient to throw out the vote. Must have 
intention at time of departure to leave the State, or district permanently, to forfeit 
his right as a voter. (Letcher v. Moore, 23d Cong.) 

When you apply these principles to all the questions of residence 
raised in the record, I submit that you will not have much difficulty 
on that portion of contestant's case. 

And now, to sum up this matter, I wish to call the attention of the 
committee to one pregnant fact in conclusion, and that is that the 
contestant can not establish any claim to my seat, save over the 
prostrate form of some established precedent. By whatever road 
he seeks to reach his goal, he finds his way barred by some well recog- 
nized and vital authority. If he seeks to obtain your decision on the 
ground that the organic law of Virginia, which provides for the redis- 
tricting of the State, has been abused, he requires you to place an 
interpretation on that instrument wholly at variance with the one 
afforded by the supreme court of my State in the case of Wise v. 
Bigger, which remits apportionments to the discretion of the law- 
making department. 

If this is a function of the legislature in my State, and not of the 
courts, he does not inform you how and why in the exercise of an 
exclusive function the former body has commited an unconstitutional 
act. 

If contestant undertakes to challenge my right to sit in this Con- 
gress on the ground that the action of the Virginia legislature was 
contrary to the apportionment act of 1901, he finds himself confronted 
with the necessity of overthrowing the well established and well 
reasoned precedent of Davidson v. Gilbert, which, upon an identical 
state of facts and one far more compelling, I may say, than the 
facts presented in the case in hand, held that Congress had no right 
to interfere, and in addition advised that if such authority of inter- 
ference did exist it would be unwise to seek to exercise it. If con- 
testant relies upon the proposition that a State can make but one 
apportionment within a census period, and that on this ground the 
Virginia act of 1908 is unconstitutional, he is confronted with a 
double necessity, first of overthrowing the precedent of Perkins v. 
Morrison, which maintains the contrary with abundant logic, and 
second of showing that either the act of 1906 or of 1908 was an act 
of general apportionment. 



PARSONS VS. SAUNDERS. 185 

If without regard to Perkins and Morrison contestant seeks to 
bring this case within the principle announced in the Indiana and 
Illinois cases relating to exliaustion of power, he must point out with 
reference to the Federal Constitution, and acts passed in pursuance 
thereof, and the constitution of Virginia, how and wherein those in- 
struments have fixed the mode and the time according to which the 
legislature of our State must make its congressional apportionments. 
Both of these cases maintain that if some paramount authority has 
not fixed the mode and the time, the right of the States to make their 
apportionments with such frequency as they see fit is unlimited. 

If he asks this committee to take that view of our constitution 
which would restrict the exercise of the right of suffrage in Virginia, 
he flies counter not only to the well-reasoned cases submitted, but to 
established principles of construction applied to statutory and organic 
law. 

However and from what quarter I may be attacked, I rest my case 
upon the solid foundation of reason and principle, upon the thought- 
fid findings of wise and patriotic men who have long since expressed 
themselves upon the questions which you are asked to thresh anew 
for the benefit of a contest which is utterly lacking in any real merit. 

The main contentions upon which I rest my claim to a seat in this 
honorable body rest upon well-established precedents, both juridical 
and congressional. Unlike Governor Montague, I do not undertake 
to exalt the former at the expense of the latter by referring to the 
one in terms of excessive praise. I believe in the binding force of 
judicial precedent, in the judicial sphere, but surely w4th reference 
to a contest of this character the thoughtful action of a former House 
is not to be brushed aside by a derisive reference to it as a political 
precedent. 

It has been argued that without regard to precedent this commit- 
tee can report in favor of the contestant, and that the House is a law 
unto itself from which there is no appeal. I do not deny that in a 
sense this is true, that what it wills the House can do without regard 
to law or authority. But the suggestion of such a course is a reflec- 
tion upon the House and this committee, and there is not the slightest 
ground for believing that either will take any step which will involve 
a contempt for precedent or a disregard of the requirements of jus- 
tice. Governor Montague fully realized that the precedents of the 
House are against the claims of his client. Hence he sought to 
minimize the binding effect of those precedents by the suggestion 
that they were partisan judgments. He failed to advert to the fact 
that Davidson v. Gilbert was the finding of a Republican committee 
in a Republican House in favor of a Democratic contestee. I do not 
doubt that there have been partisan decisions in the House. I do 
not doubt that such have been rendered. Courts have rendered par- 
tisan decisions, for after all they are human, men of like passions with 
ourselves. I do not undertake to say that the history of the past 
has not been marred by political decisions. All parties have doubt- 
less been guilty in this res])ect. It is too much to expect that human 
frailty will do justice at all times though the heavens fall. 

But we may thank our God that it is no longer true, if it ever was 
measurably a fact, that a contestant can obtain a seat in this body 
upon no better ground than that the seat which he claims is held by 
a member of the minority, who is entitled to no consideration at the 



186 PARSONS vs. SAUNDERS. 

hands of the majority. There is nothing in the history of Congress 
which is more to its credit than the fact that for some years the 
decisions of the election committees of this body have justified them- 
selves to all the members of the House by the character of the find- 
ings, which have reposed upon the immutable rock of law and justice. 
These findings have secured universal commendation among patriotic 
men of all parties. There was one case, at least, which is decisive 
of this contest and which Governor Montague could not affect with 
the slings and arrows of his sarcasm or refer its decision to the ground 
of f)arty exigency. That is the oft-cited case of Davidson v. Gilbert, 
decided by a Republican committee of a Republican House against a 
Republican contestant. 

Mr. Chairman, I am a member of the minority party. There are 
no political influences or considerations to be urged in my behalf. 
I stand on the merits of my case, and asking nothing save justice, 
I have no reason to believe that I will fail to receive that justice at 
the hands of this committee. You are Republicans, at least a 
majority of the committee are Republicans. I am a Democrat, and 
as a general proposition I support those measures which are popu- . 
larly called Democratic. In the same general way you support 
those measures to which your party is committed. In that sense 
we oppose each other. But there is one common ground on which 
we meet, on which we all stand, and that is the ground where justice 
is done and party considerations are discarded for action under a 
higher and paramount law. In recent years two election cases 
from my State attracted a great deal of attention. These were the 
cases of Walker v. Rhea. Walker had been a Member of this body 
and pressed his claims with great vigor, alleging fraud and many 
other grounds of contest. In each instance the vote had been close, 
and there were many elements of the contests which appealed to 
what may be styled the sympathetic consideration of contestant's 
party friends in this body. But the scales of justice were held with 
even poise until the law and the evidence inclined them on the side 
of the contestee. Justice was done under the law. General Walker 
was a man of large ability and influence. He presented a case each 
time which, according to the report of tlie committee, showed that 
there had been a measure of fraud on the part of some friends of the 
contestee. And yet after a full hearing the contestee was seated in 
both contests by a Republican House. 

I cite these things to show that in the past decade at least, in spite 
of the insinuations of Governor Montague, the action of this body 
in election cases and the findings of the election committees of this 
House are not to be shaken as to their binding force and effect as 
precedents by the suggestion that they are partisan judgments. 
They have been accepted as just judgments by the country at large. 

This is my case, Mr. Chairman; my case on its merits, my case on 
the facts, my case on the law, my case on the precedents, my case on 
the Constitution and statutes of the United States illustrated and 
expounded by the precedents of this House, my case on the statutes 
and organic law of my own State as expounded by the courts of that 
State. I say that without fraud, without wrongdoing, without vio- 
lence, without conspiracy, without misconduct in the conduct of the 
election in November, 1908, I received a majority of the votes, hon- 
estly cast and honestly counted, in the Fifth district of Virginia, and 



PARSONS VS. SAUNDERS. 187 

SO receiving tliem, I received the certificate of election. That cer- 
tificate I leave in your hands, with the confident assurance that justice 
will be done. That is my case, Mr. Chairman and gentlemen of the 
committee. 

(Adjourned to meet at 10 a. m. Saturday, March 5.) 



Committee on Elections No. 2, 

House of Representatives, 

Saturday, March 5, 1910. 
The committee met at 10 o'clock a. m., Hon. James M. Miller 
(cluiirman) presiding. 

ARGUMENT OF HON. JOHN M. THURSTON. 

Mr. Thurston. Mr. Chairman and gentlemen of the committee, it 
is difficult within any reasonable time to recover from the enduring 
argument tliat has been presented to the committee, and I confess 
that in sitting here so many hours it has been almost impossible for 
me to center my mind as I desired to do upon those few questions 
which are clearly, and must be clearly, decisive one w^ay or another 
of the result in this case. However, I shall endeavor to confine my- 
self very closely and not at too great length to those questions, and 
to those alone, wdiich seem to me to be vital. 

In the first place, I shall take up the question as to who are legal 
voters and w^hat shall be done with a ballot illegally cast, and how the 
fact of the noncpialification of a voter, making him ineligible under 
the laws and the constitution of Virginia to cast a vote, may be 
determined. In the first place, I w^sh to refer for a moment to the 
suggestion or to the statement of Mr. Saunders, brought out through 
a member of this committee, that the whole purpose and tendency of 
the constitution and the laws of Virginia was to encourage and secure 
the utmost liberty and freedom and ease of the exercise of the elec- 
toral franchise. 

I shall not discuss this case in a partisan spirit, and in what I have 
to say on this ]:>articular point I shall speak as far as I am able from 
the standpoint of a disinterested historian, and not from the stand- 
point of a partisan interested in any political party of this country. 
It is a matter of common knowledge, never denied, universally ad- 
mitted, in one part of the country as well as in the other, that the 
constitution of the State of Virginia as it exists to-day, in common 
with the constitutions of several of the other States of this l^nion, 
was framed by the most crafty statesmanship and by the highest art 
of subtle and refined legal ability for the verv purpose of making it 
difficult, if not impossible, for a considerable portion of the electors of 
those respective States to vote. 

Mr. Saunders. Will the gentleman let me interrupt him in that 
connection ? 

Mr. Thurston. Yes. 

Mr. Saunders. I do not want to be misunderstood in that connec- 
tion. I want to be frank. In saying that it is now easy to vote in 
the State of Virginia, I do not mean to say that we did not have in 
mind to restrict the electorate by the action of our constitutional 
convention, if that could be done in a constitutional manner. I 



188 PAESONS vs. SAUNDEES. 

frankly admit that we wished to restrict the number of negro voters 
if it could be done constitutionally. 

Mr. Thurston. I had no doubt that the gentleman would make 
that statement. 

Mr. KoEBLY. I would like to observe that Mr. Carrico made the 
statement here the other day, and it is in the record, I believe, that 
this operated to keep out a good many whites as well as blacks. 

Mr. Thurston. I do not believe he made that statement. 

Mr. Carrico. I did make that statement, and I stick to it. 

Mr. Thurston. Wliether that be true or not, it was evidently not 
the purpose of that constitution to do that. The intent and purpose 
was, and is, as I have stated. But I am not quarreling with it. 
I do not know that I would have acted differently from what the 
people of that section of the country did, myself, if I had been there 
under the same circumstances. But the purpose of these carefully 
framed constitutional provisions was to exclude from access to the 
ballot box and from participation in elections, and certainly from 
participation in the holding of office, a class of people considered 
undesirable, and possibly dangerous to the continuance of the exer- 
cise of political control in the State; so that when they came to 
frame this constitution they framed it very carefully, not for the 
purpose of extending the right of suffrage, not for the purpose of 
making it easy for the ordinary elector to vote, but they framed it in 
the interest of classes — I am not talking about color — and they made 
it as difficult as the ingenuity of man could contrive for certain classes 
of the people otherwise qualified to exercise intelligently and with 
equality their right to vote. They framed their constitution so as 
to evade the spirit of the fourteenth and fifteenth amendments, 
while at the same time it was so skillfully done that the courts of the 
country could not declare from the judgment seat that they directly 
violated the express provisions of those amendments. 

Now, I am not saying how that operates in the State of Virginia, 
whether it operates on more colored or more white people, but those 
constitutional provisions embodied in that constitutional requirement 
for registration and the manner in which it shall be performed were 
enacted for the purpose, and do have the effect, of making the exer- 
cise of the franchise in the State of Virginia most difficult and uncer- 
tain. 

Now, let us see if anywhere along the line of their legislation there 
is a single provision which points out an easy road, for the ordinary 
man in the community, to the polls where he desires to cast his ballot. 
The constitution provides that all persons residents of the State 
two years, of the county one year, and of the precinct thirty days, 
who have registered and paid their poll taxes as therein required, 
shall be lawful electors of the State of Virginia, making the matter 
of registration as therein required one of the original qualifications, or 
rather one of the essential elements, necessary to constitute a man 
an elector under their constitution. 

Now, that would be all right, that would be open and fair, and that 
would give everybody the same opportunity if they had, following 
that provision of the constitution, provided for a registration act that 
was easily open, easily accessible, and the provisions of which could 
be easily complied with by all the citizens of the State. I am not 
here to declaim against an educational qualification as a prerequisite 



PAKSONS VS. SAUNDERS. 189 

to the exercise of the right of suffrao-e^ nor am I here especially to raise 
my voice against the proposition of a property cpialification as essen- 
tial to the exercise of the right of suffrage ; and yet in the last analysis, 
in a great popular government, where power comes from the people 
and where they are supposed to rule themselves, the rich man and the 
learned man and the strong man can care very well for themselves 
without exercising the privilege of his franchise, while the poor man 
and the ignorant man and the weak man have but little self-protection 
left in this government, except the right of the electoral franchise and 
the power that it gives to the individual. They provided in this con- 
stitution that all persons should have the right to register during the 
3^ears 1902 and 1903, and not thereafter, first, who prior to the adop- 
tion of this constitution served in time of war in the Army or Navy 
of the United States or the Confederate States, or of any vState of the 
United States or of the Confederate States. 

Having in mind the political and historical history of the State and 
its present citizenship, we can readily see that that provision was de- 
signed to place upon the rolls without any other or additional pre- 
requisites or demand for other qualifications, a very, very large pro- 
portion of the dominant citizenship of that State, not speaking now^ 
of black or white but of the dominant political citizenship of that State. 
It was designed for that purpose, to prepare and establish A\ithin a 
short time an eternal registration list which would thereafter remain 
forever, and make it in the first instance the lever which should retain 
the electoral power in the hand of the dominant organization of the 
State of A^irginia for all time to come. 

I do not know on what theory of making the exercise of the elec- 
toral franchise easy it can be said that a man who fought under either 
flag in the civil war between the States should have any easier access 
to the polls than a man who did not fight. It can not be justified upon 
any other theory except that underlying its enactment was a desire 
and the intention and a purpose of maintaining the dominance of 
one organization in the State of Virginia, to place upon the perma- 
nent rolls of that State, in the first instance, so large a proportion of 
the people of that State who were certain to remain true to their 
political allegiance, that thereafter there could be no overturning of 
political supremacy in the State. 

Second, a person could register who owns property, upon which, 
for the year next preceding that in wdiich he offers to register, state 
taxes aggregating at least one dollar have been paid. I have said all 
that I care to say about that. Personally, I do not believe in a prop- 
erty qualification. I do not believe that a man who owns a jackass 
has any more right to vote than a man who does not, and I believe 
that when you take the situation of a man who owns a jackass and 
can vote and that of a man who does not own a jackass and who can 
not vote, it is a very doubtful proposition whether the man or the 
jackass is exercising the political franchise. But I say that these 
provisions were all put in there to secure political domination. I am 
not saying that they were put in there solely as against the colored 
vote in the State of Virginia. The same necessities have not existed ; 
the same conditions have not existed in the State of Virginia that 
have existed in some other States of this countrj^ wdiere, for reasons 
that I am not here to question, the dominant people of those States 
have felt compelled to enact constitutions and legislation that would 
exclude from the polls the great body of the electors of the State. 



190 PAESONS VS. SAUNDERS. 

The next clause is that a person could register who was able to read 
any section of this constitution submitted to him by the officers of 
registration, and to give a reasonable explanation of the same. 

You will see that the first two qualifications were all that were 
necessary to enable persons to place themselves upon the permanent 
rolls of the State. Upon this last section I desire to comment just 
for a moment, and I would not have branched off onto this line of 
discussion at all if it had not been for the assertion based upon a 
question which seemed to indicate that there might be involved here 
a determination as to whether or not the policy of Virginia election 
legislation was intended to make the road to the polls straight and 
easy. Now, think for a moment what this provision is. We must 
deal with existing conditions as they are to-day, and as they were 
when this constitution was adopted. 

It has already been stated here, and it is known, that the entire 
state government of Virginia is in the hands of one party; that all the 
judges on the bench of the State of Virginia are members of one party. 
They are good men, and I do not charge that judges on the bench in 
their judicial capacities will act unjustly, intentionally, because of 
partisanship and outside influences, but I do know, and you know, that 
woven in the warp and the woof of every human character is partisan- 
ship, political, social, and domestic, that in a measure, and often in a 
large measure, guides and directs what are supposed to be the most 
deliberate judgments of men. The judges appoint the political 
council — I call it that — in every county or city of the State. There 
is no provision in that act that any one of this council shall be of a 
minority party; and you have heard statements here that as a matter 
of fact the party in power having the appointment of those election 
councils retains — appoints and retains — the members of their own 
party, as they have a right to do, a legal right to do; I do not question 
it. But I am showing how difficult they have made it for anybody, 
especially for a man not well up in educational advantages, to find 
his road to the polls. 

These political councils in each county appoint the registrars, and 
all of them. From the dominant party executives of the State to the 
judges placed upon the bench by the same dominant party, to the 
political councils of each county of the same dominant party, and 
down to the registrars, in fact, all the election machinery of the State 
of Virginia has been placed, and placed not for temporary use, but in 
the expectation of preserving its perpetuity, in the hands, and in the 
exclusive hands, of the members of the dominant party. Now, here 
is where the nigger is in the wood pile. I am not using that expression 
to refer to the question of black or white down there, but in a figura- 
tive sense. A person who was not an old soldier of the nation or of a 
State, or who had not paid a dollar tax on his property for the year 
before was required to he able to read any section of the constitution 
submitted to him by the officers of registration and to give a reason- 
ahle explanation of the same. 

Stop and think about that; what a power that put into the hands 
of the registrars of that State. The constitution provides that a man 
can not vote unless he is on the registration list. The registrar sits 
there as the sole judge. He is vested not with mere executive power, 
but with a judicial and discretionary power, after hearing this man 
read a section of the constitution, and after hearing his explanation 



PARSONS VS. SAUNDERS. 191 

as to the meanino; of it, to decide whether he is qiiahhed to vote. He 
is vested witli an absolute, a complete, a final judicial and discretion- 
ary power 

Mr. Saunders. No, no. 

Mr. Thurston (continuino;). To decide that that man has ex- 
plained that section of the constitution accordino; to his satisfaction 
or not. 

Mr. Saunders. Pardon me, Senator; his power is not final. The 
voter had a rio;ht to appeal to the court. 

Mr. Thurston. Not final, because he may appeal to the court; 
but final for the purjiose of placing liis name on the registration 
book at that time, or of excluding him. 

Mr. Saunders. No, sir; if you will pardon me, anybody who is 
excluded as of that date had an absolute right of a])peal to the cir- 
cuit court. 

Mr. Thurston. Yes; I say it is a final power to enter up a judg- 
ment at the time, admitting or excluding the party from a place 
upon the registration book. It is true that the right of appeal is 
given to this poor man who has not been able to explain a section of 
the Constitution of the United States or of the constitution of the 
State of Virginia satisfactorily to a registrar before whom he has 
appeared; but what is that to the poor man? 'Wliat remedy is that 
to tlie man who may be excluded ? 

How many of us could satisfy a registrar in the State of Virginia 
as to the true intent and meaning of any section of the Constitution 
of the United States or of the constitution of the State of Virginia ? 
Why, Mr. Saunders has spent hours, even, attempting to convince 
this committee that he understands at last what the meaning of one 
particular section of the constitution of Virginia means, and I doubt 
if even Judge Saunders, with his persuasive, and I might say almost 
perpetual, eloquence, could convince against his will a registrar of 
an opposite party in an election contest that he understood a provi- 
sion of the constitution of the State of Virginia correctly so as to 
entitle him to be placed upon the rolls. 

Mr. KoRBLY. Mr. Thurston, do you maintain that the people of 
this country at large do not possess an adequate knowledge of their 
guaranteed rights under the Constitution? 

Mr. Thurston. No; but I claim this, that when you place it in 
the power of one man sitting as registrar, without any particular 
responsibility of office, without any penalty imposed upon him for 
deciding incorrectly, a political registrar, the creature of a political 
party, undoubtedly carr3'^ing into the exercise of his duties in that 
position whatever political bias he may have — when you place in his 
hands the power of saying that this man's explanation is correct or 
that that man's explanation is not correct, you place the most dan- 
gerous power in the hands of the most subordinate officer that I can 
conceive has ever been vested in an official, high or low, in this 
country; and, as a matter of fact, if those registrars desire to use 
their office for political advantage of their own political party, it is 
in their power to do it to an extent that would forever prevent a 
minority party in the State, or in any district of Virginia, from having 
an equal and fair opportunity at the polls. 

Mr. KoRBLY. I do not want to take up your time, but is that in 
the original preparation of the poll list ? 



192 PARSONS vs. SAUNDEKS. 

Mr. Thurston. That is in the original preparation. 

Mr. KoRBLY. Afterwards can they not get on by making some sort 
of appHcation ? 

Mr. Saunders. If the Senator will permit me in this connection, 
I would say that the present law is absolutely different from that. 
Of course I do not want this to be taken out of Senator Thurston's 
time at all, but his argument has taken a direction absolutely unin- 
dicated by anything that has gone on here before. That we would 
enter upon a discussion of the constitution of Virginia with respect 
to its establishment, and the considerations which brought it about, 
was not indicated in the oral arguments that preceded hiin. I simply 
wish to say again, with respect to the election laws of Virginia, that 
what I said yesterday refers to present registrations. I did not dis- 
cuss registration under the constitution. 

The present provisions for getting on the registration books are 
easy. It is not difficult to pass the tests imposed for registration, and 
thereafter it is a mere matter of paying an annual tax of $1.50, all of 
which goes to the school fund for educational purposes. There has 
been no unfairness on the part of the registrars throughout the dis- 
trict in enforcing the law and admitting parties to registration. The 
evidence in the record for Henry County shows that the bulk of the 
new registrations in that county are Republicans. Quite a number of 
them are negroes. 

Mr. Thurston. I am not here criticising the right of the dominant 
party of the State of Virginia to enact these constitutional and 
statutory provisions, nor am I here insisting that in any particular 
case, up to the present time, any registrar has been biased or preju- 
diced in his judgment upon any case presented to him for his decision, 
but I am merely pointing out the proposition that when it is said that 
the dominant controlling partisans of the State of Virginia have 
endeavored to make it easy in that State for the body of its citizen- 
ship to find the way to the polls, I turn around and point to the 
provisions of the constitution, and their enactments of law, and I 
insist that they have endeavored to make it as easy as possible for the 
dominant and controlling faction, and as difficult and impossible as 
the ingenuity of man could devise, so far as the other people of the 
State are concerned. 

Now, I do not care to go into the question of what the existing pro- 
visions are as to the right of franchise. Under this provision as to 
the power of the registrar, in every county in the State* they were 
enabled to place upon the permanent rolls, to remain there unchal- 
lenged forever, practically the dominant political population of the 
State of Virginia, and what they have done since in reference to 
changing, or what is necessary now to be done, to get upon those rolls, 
is a matter of the utmost unimportance. 

Now I come to this proposition, which is in the case. You are con- 
fronted here with proof that tends to show that certain ballots were 
illegally cast and went into the ballot boxes and were counted. It 
is impossible for me in the scope of my argument to attempt to point 
out or refer you to a single instance, so far as the testimony is con- 
cerned, where it is shown that an illegal ballot went into a ballot box 
or was counted one way or the other. That, although it is very 
burdensome upon the membership of this committee, must be wroughl 
out by your own persistent examination of the testimony, aided, sc 



PABSONS VS. SAUNDERS. 193 

lar as we have been able to aid you, by the analysis of votes of the 
individual cases prepared by either side and presented to you; but I 
take up the question, Has an illegal vote gone into the ballot box? 
Has just one gone into a ballot box? 

What is the eilect of it, and what is to be done with it? Judge 
Saunders admits that a vote cast by an}'^ man at tlie polls, whether 
he was on the registration book or on the tax-paid list or not, if in 
('act he was dis([ualilied as an elector of the State, is an illegal ballot 
in the box and ought not to have been cast, and that you can estab- 
lish the fact of tlie disqualification of that voter by other proof than 
the mere fact of the registration list and the fact that he has voted. 
Now, if you find a single ballot in the box where the proof is definite 
that it was cast by a man not qualified under the constitution or 
laws of the State of Virginia to cast it, you must do something with 
it. Courts have not permitted thtit illegal ballots when discovered 
should determine the result of any election. The courts have held 
that when you find that one Ulegal ballot went into the box — most 
of the courts have held — tliat you have a right in a court to take 
testimony to show, if you can, how that man voted ; and if you can 
fairly determine that he voted in a particular way, that one ballot 
must be eliminated from the column of that side. 

Now, what proof is necessary to show this I will not take up the 
time to argue here, although I think I could state it very clearly; 
but I believe that the members of this committee — who are not 
only, I think, all practicing members of the bar, but, as is shoAvn 
by the very fact that they are here, must be very familiar with the 
consideration of problems involved in the elections carried on in the 
country — can determine, and this committee must determine, what 
character of proof and how much proof is necessary, besides the fact 
of finding the ballot in the box, as to how and for whom that par- 
ticular ballot was cast; and, as I said, if from the proof you find it 
was cast for any particular side, you must eliminate it from that side. 

But if you can not find from the evidence as to how that vote was 
cast or for whom it has been counted, the law still w^ill not tolerate 
that that ballot shall have any force in determining the result of that 
election, and therefore the courts have determined and decided, and 
I think by an unbroken line of authorities, that where illegal ballots 
are cast, and where it can not be determined satisfactorily as to how 
or for whom they were cast, those ballots must be rejected at each 
polling place pro rata from the votes cast for the two opposing 
candidates at those places. So that if at a poUing place three illegal 
votes were cast, and the vote at that poHing place was in the pro- 
portion of two to one for Smith as against Jones, you must deduct two 
of those votes from Smith and the other one from Jones. 

Mr. KoRBLY. Must you go into fractions to carry that out ? 

Mr. Thurston. The courts have done it. In the State of Nebraska 
they carried that out by a decision of our supreme court at one 
time, as nearly as I can now recollect it, that an election for one of 
our judges was carried by 1^^ votes, and by the apphcation of the 
very rule which I have just mentioned. 

Mr. KoRBLY. Let me ask you a question. Let us suppose they 
could decide it on the one vote; but suppose that the majority had 
been seven-sixteenths of one vote, would you say then that that 

:«069— 10 13 



194 PARSONS VS. SAUNDEES. 

would have been a declaration of the majority ? I mean if the differ- 
ence between the two was onl}^ seven-sixteenths — that is, the total 
was only seven-sixteenths, or a fraction of one vote — would that 
constitute a majority? 

Mr. Thurston. On the whole case ? 

Mr. KoRBLY. Yes; suppose that in the Saunders-Parsons case the 
committee should determine that the difference was seven-sixteenths 
of a vote between them, could you say that there had been an election ? 

Mr. Thurston. You suggest a very interesting question, and I am 
not prepared to answer it. I am not prepared to say whether a frac- 
tional part of one vote can elect any man to office, although in our 
State we had one instance where the Senator-elect in our state legis- 
lature reported that he was elected by a unanimous majority, and it was 
found that he was elected by one vote. Now, those are the things 
that the committee must do if they find that illegal votes have been 
cast. Then the fact that a man was on the registration list is not 
conclusive proof that he was entitled to vote. The fact that he was 
on the tax-paid list is not conclusive proof that he was entitled to vote. 
He may have been disqualified, as a matter of fact, for three or four 
causes, and there are instances in the vast detail of this testimony of 
cases of each particular kind. 

Notwithstanding the tax-paid list, pro or con, he may not have paid 
his taxes for three years and the proof may so establish the fact. In 
that case he would be an illegal voter. He may not have lived in the 
State two years at the time of the election. In that case he would be 
an illegal voter. He may not have lived in his precinct a sufficient 
length of time to entitle him to vote, and in that case he would be an 
illegal voter. He may have removed from the precinct where he for- 
merly voted and where he now casts his ballot, and in that case he 
would be an illegal voter. All the votes cast in those cases must be 
rejected, by the application of one or the other of the rules I have 
suggested, by this committee. 

Of course the great number of votes claimed to be illegally cast in 
this case are in alleged cases where the voters had not paid their poll 
taxes under the provisions of the constitution, and it is to the question, 
first, how shall the proof be taken to show that men who actually 
voted had or had not paid their poll tax, and had or had not complied 
with the provisions of the Virginia constitution. I am not intending 
to discuss just at this moment the question as to whether or not the 
poll-tax list is conclusive proof at the polls both as to the payment of 
taxes by the men upon the list and of the nonpayment by others ; but 
I am going to discuss just now, not as a prevoting requisite, but as a 
question of proper proof in the case, to establish the fact that a man 
had not qualified himself by paying his taxes, as to what this tax-paid 
list as a matter of evidence before this committee is. 

The law provides, and I want to call attention to it, both for the 
purpose of this point and of the other one that I shall make further 
on with regard to this list, that the county treasurer shall make a list. 
Of what ? Not of persons who have paid their poll taxes as required 
by the constitution, but of all persons who have paid their poll taxes. 
That is the language of the statute. That is the direction to the county 
treasurer. It is mandatory upon him that he shall make a list of all the 
persons who have paid their taxes, and that list, by the law, is made 
evidence of all it contains. If it were not expressly provided by law 



PARSONS VS. SAUNDERS. 195 

that this should be evidence at all, it is still evidence as a public record 
required to be kept under the laws and in which the treasurer of the 
county is under a mandate to place upon that list the names of all 
persons who have paid their taxes in accordance with the constitution 
of the State of Virginia. 

Therefore, if there were no statute making it conclusive evidence 
or evidence at all, yet when you come to attempt to prove that a 
man has not paid his tax, the first evidence, the best evidence, is the 
record prepared by the direction of the constitution of the State of 
Virginia. You would say, "Wliy not go to the treasurer. His 
records would be the best evidence. Go to the books of the treas- 
urer." Why would they be the best evidence? The law requires 
him to keep books, showing upon those books the men who have 
paid taxes; but the law expressly requires him to make a further 
public record in a list which he is compelled to certify to, which con- 
tains the names of all persons who have paid their taxes. Then, 
leaving out the effect of that tax list at the polls, when you come to 
attempt to prove the fact that a man has not paid his taxes, is it not 
the first, is it not the best, is it not prima facie, evidence that a man 
whose name is not upon that tax list has not paid his taxes? 

The rule was invoked here yesterday with respect to this same 
tax list, and in respect to the action of the judges of elections, that 
the law presumes that every public officer has done his duty as 
required by the law, and that until there is proof to the contrary, it 
must be held that whatever action has been taken officially by a 
public officer has been a full compliance with the laws under which 
he acts, and must be so held until there is testimony to the contrary. 
Therefore this list which the law requires him to make, of all the 
persons who have paid their taxes, must be, in a court, the official, 
prima facie test evidence that a man whose name is not thereon has 
not paid his taxes; and the burden of proof is shifted from the person 
asserting that the voter has not paid his tax, the burden is shifted 
then to the other side, to establish that that official list made under 
the direction and mandatory provision of the law, is not in fact a 
full and exact compliance with the law by the treasurer. 

That is very important in this case, because pursuing that line of 
inquiry and believing that that official tax list thus required to be 
kept and certified, and to contain the names of all those who have 
paid their taxes was the best, was the official, and must be prima 
racie evidence of the fact that it does contain all the names of all the 
men who have paid their taxes, we have introduced those lists in 
evidence as proof, as prima facie proof, as all the proof we are required 
to present until some one attacks the prima facie proof thus presented, 
of the fact that men not upon those lists made up and certified to by 
the officers of their county — the county treasurers — those lists which 
must be full and complete if the law is complied with, have not paid 
their taxes; and that is a prima facie case, and with that tax list 
here and the poll book here, and the poll book showing that John 
Smith voted at a certain precinct, and the tax list of that precinct 
showing that his name is not upon it, there is a prima facie case 
which can not be questioned except by proof that the man in fact 
actually had paid his taxes; and the burden of proof is shifted. 

And so I say, without any fear of being overruled by this committee, 
that under the provision of this law which makes this tax list a public 



196 PARSONS vs. SAUNDERS. 

record, the preparation and certification of it is an official act under a 
requirement that tliis sworn officer place therein the names of all 
persons who had paid their taxes; that that list, regardless of what 
it is at the polls, is proof, and in court is prima facie evidence for 
anybody who may seek to invoke such testimony, that a man not 
upon that tax list was not a tax-paid voter at the time of that certifi- 
cation to that list ; and the burden of proof shifts, and the other side 
must prove to the contrary. Now, it is very important in this case, 
because in my judgment, after running down all the testimony as 
carefully as I could, and with the assistance of my associates in that 
matter, I have reached the conclusion in my own mind that there were 
cast, and will be found to have been cast and counted, far more than 
enough ballots by persons who did not appear upon the tax lists at 
their respective polls, to more than wipe out, and a great deal more 
than wipe out the certified majority in favor of Mr. Saunders, and 
that number is sufficient, if they are excluded from consideration and 
count, by either of the processes I have suggested, to show that 
Mr. Parsons did in fact receive a clear majority of the legal votes cast 
in that district. 

Now having stated my position on this, 1 am not going to extend 
my remarks along that line any further, but I come to the next 
question, which goes to this same matter of how certain votes before 
the committee shall be counted. 

There were not enough votes, as you have discovered, cast where 
this man Mathew's name was left on the ballot and the name of one 
of the real candidates was left there with it, unscratched — there are 
not enough of those ballots either pro or con — to determine in and of 
themselves the question as to which candidate received a majority of 
votes in that district; but there is a considerable balance of those 
votes which must go to the credit of Mr. Parsons if the committee 
shall hold that the name of Mathew had no right to be upon the bal- 
lot; 'and in that view of the case the question is important for your 
decision, because if the apparent majority shown on the official re- 
turns for Mr. Saunders is cut down by the allowance to Mr. Parsons 
of these Mathew-Parsons votes, then of course it is not necessary for 
us that the committee shall find as many votes illegally cast and to be 
eliminated from the result — I mean illegally for other reasons than 
the Mathew-Parsons situation — it is not necessary to find so many 
of them in our favor, in order to give us a decision upon the question 
as to who did receive the actual majority of the votes cast. 

I confess that a discussion or a presentation of this question of 
what shall be done in the State of Virginia or anywhere else where 
the name of an insane man creeps upon the ballot, is new to me. I 
think it is new to the world. I have not been able to find any case 
where anything similar to that situation has ever been presented to a 
court. It must remain a question of first impressions, to be decided 
by the best application of a legal judgment: 

Mr. KoRBLY. Let me ask you a question. If Elliott Mathew had 
been arrested or taken into custody for the purpose of taking him 
back to the asylum, and he had sued out a writ of habeas corpus, the 
question of his identity would have been raised, would it not, neces- 
sarily ? 

Mr. Thurston. Undoubtedly. 



PABSONS VS. SAUNDERS. 197 

Mr. KoRBF.Y. Any notice that was given to the secretary of state 
would raise the same question of identity, would it not, whether that 
was the particular Elliott Mathew that was insane ? 

Mr. Thurston. I think so; yes. It might not appear to the 
voters of the county, knowing nothing about the circumstances, even 
to those who knew an insane Elliott Mathew, that the name on their 
ballot was the name of that insane person. 

Mr. KoRBLY. I mean with regard to the action of the secretary of 
state ? 

Mr. Thurston. Yes; I will come down to that. Now, it is per- 
haps true that under the laws of Virginia — which are most remark- 
able in that respect, and I think this represents perhaps the only 
case of apparent thoughtlessness and lack of extreme caution in the 
preparation of their election laws — it is possible for any man,, by a 
mere request to the secretary of state in writing, witnessed by two 
persons, to have his name placed upon the official ballot. That 
is a most unwise provision. I think we will all have to admit that. 
See what the consequences might be out in your State, Mr. Korbly, 
or in your district. See what tremendous complications could arise 
if the opposition or somebod}^ intending to mix up the whole ques- 
tion of the ballot and confuse voters should get a dozen or fifteen 
or twenty or thirty or forty men to send in notices that they were 
candidates for Congress, and all they would have to do would be 
to sign a notice of that kind and get two signatures to it. 

Mr. Korbly. The same thing could be accomplished by a little bit 
harder process; not much harder. 

Mr. Thurston. Oh, in most of the States there is a requirement 
that a person must have had a certain proportion of the votes cast at 
the last election to go on as other than a regular party candidate, or 
that any person to become an independent candidate must have a 
petition signed by a certain number of persons or by a certain per- 
centage of the persons who cast ballots at the last election. There 
are various legislative provisions of that kind in the various States. 

Mr. KoRBLY'. There was one case referred to here of a man in New 
York who had a petition containing 2,000 names and he got only 
1,100 votes at the election. 

Mr. Thurston. He probably got all he deserved going on the 
ticket in that way. [Laughter.] All I am saying is that I am not 
criticising this law, and I am not saying that the question whether it 
is a good or a bad law has anything to do with the decision of this 
question. I just remarked that, in m}^ judgment, it is a dangerous 
law ever to have been enacted, and it leaves the opportunity in the 
hands of every scheming politician to do these things, and by that 1 
do not refer to the scheming politicians of either party. I say it does 
place in their hands the power to confuse and to disturb and perhaps 
to change the result of any election by getting a dozen or fifteen or 
twenty names, perhaps, on the same ticket for Congress. It is prob- 
able, and I will admit it, that under this law a notice which went in to 
the secretary of state, signed by an individual and witnessed by two 
witnesses, compels the secretary of state to put the name of that man 
on the official ballot, with a proviso, however, and I insist upon the 
proviso, and before I state the proviso I will give the reasons why I 
place the proviso there as a matter of legal construction. 



198 PAESONS VS. SAUNDEES. 

I can not attempt to turn to the law and quote its exact language, 
but the effect of it is that "any person" maj file with the secretary of 
state his written notice that he is a candidate for Congress; that 
"any person" may do so. Now, under the laws of Virginia, which 
have been sufficiently referred to here, a man must have certain quali- 
fications in order to make him a legal voter. He is disqualified by 
express provision if he is a lunatic. In order to hold any office in that 
State, and therefore in order 'to be a lawful candidate for any office in 
that State, he must be a qualified voter at the time. I think the law 
here is clear and explicit, and it furnishes another illustration of the 
proposition that where the law defines and specifies a certain quali- 
fication as prerequisite for anything there can be no other qualifica- 
tion except the one specified in the act; and that when you say that 
every qualified elector shall be eligible to any office in the State, you 
say, by the natural and inevitable intendment of the act, that no one 
but a qualified voter shall be a candidate or hold an office. That 
statutory interpretation runs into another branch of this case. 

I will not discuss that now, but I lay down here for the thought of 
the committee from this time on that wherever the legislature pro- 
vides that a certain thing shall constitute a qualification for office, 
that wherever they provide that a certain official thing shall be evi- 
dence of what it contains, wherever they provide that a certain 
thing may be done in a certain way, it is as much the legislative in- 
tent and must be read into the act as if it had been written in the 
act itself; that the legislature by that enactment expressly prohibited 
the doing, or the proof, or the prerequisite, in any other way than 
that defined by the statute. So a candidate for office must have been 
a qualified elector. 

Now, I insist that where the statute of Virginia says that any per- 
son may notify the secretary of state and be placed upon that list as a 
candidate for an office at a state election, that word "person" as there 
used in the law means a person qualified to run for that particular 
office, and it can mean nothing else. It does not mean a woman, it 
does not mean a minor, it does not mean an alien, it does not mean a 
man disqualified, it does not mean a convict, and it does not mean a 
man disqualified in any way for holding office in the State of Virginia. 
It goes without saying that a man who is disqualified for an office can 
not be in a legal way a candidate for that office. It says " any person " 
may apply, and it means — and it can not mean anything else — a per- 
son who has the qualifications of a candidate for that office or the 
qualifications to hold that office if the people shall elect him thereto. 
That term "person" can not mean anything else. 

Now, what I say right there is this, and it is pertinent and proper, 
that when the law requires the secretary of state to place a name 
which is sent to him in a notice of that character upon the ticket 
as a candidate, there is a proviso attached, in intendment of law, 
that he must be satisfied before he j)laces that name upon the list 
that the man who sends that notice in to him is qualified to be a 
candidate for that position or to hold that office if he shall be elected 
to it. No one will contend here for a moment but that the secretary 
of state, if a notice of that kind went in there signed by a woman, 
would have the right to refuse to place her name upon the ticket. 
And why? Not because of the fact that she is not a person, for 
a woman is a person, and a citizen also. If the term "person" does 



PARSONS VS. SAUNDERS. 199 

not mean here a person qualified to hold that office, it means a 
woman, or it means a child, or it means an alien, or it means a con- 
vict, or it means an insane man. You can not draw any other dis- 
tinction. It means one or the other. If the name of a woman comes 
in the secretary of state is compelled to refuse to put that name on the 
list. Why '( Because it has come to his official notice that the person 
who is attempting- to place her name upon the ballot is not qualified 
as a candidate or is not qualified for the office. 

Now, if you concede that, you are bound to ^o a step further. If 
the fact being apparent on that notice that the person signing it is 
not qualified to hold the office or to run for it proliibits the secretary 
of state from placing the name on the official ballot, you must go 
with me a step further and say that it is incumbent upon the secre- 
tary of state to ascertain, before he permits that name to go upon the 
ballots of his State, that the person whose name he is putting on there 
is qualified to run for that office and to hold it. 

Mr. Saunders. Qualified, in that connection, according to what? 
the constitution of Virginia, or the Constitution of the United States ? 

Mr. Thurston. Qualified according to the constitution of the State 
of Virginia. 

Mr. Saunders. Can a State add disqualifications to those imposed 
by the Constitution of the United States, in section 2 ? 

Mr. Thurston. I am taking this position, and I might as well state 
it now and have it over with, that so far as the question of Congress 
passing upon a case of the kind suggested is concerned, as to whether 
or not a man may be eligible to office under the laws of Virginia, this 
Congress sitting as a court — and I conceive it to be a court in an elec- 
tion case, no more, no less— holding under the Constitution all judicial 
power necessary for the determination of the case before it. Congress 
in its judicial capacity, supremely and completely exercising the judi- 
cial powers of the Constitution in the particular case, has just the 
same authority that any court, state or federal, has to pass upon 
every question and determine every question necessarily or properly 
arising in that case, wdiether that question be the true construction 
of the Constitution of the United States or the true construction of an 
act of Congress, or whether it be the true construction of the consti- 
tution of a State or of a statute of a State. In that particular case, 
having that all-reaching and exclusive judicial power, it has a judicial 
right to pass upon every question properly arising in the case, whether 
it goes to the construction or interpretation of an act, national or State 
in its character. 

Mr. Saunders. I agree to that proposition, Senator. You mean 
that the}^ have a right to pass upon the question, judicially, accord- 
ing to the rules of law ? 

Mr. Thurston. Yes. 

Mr. KoRBT.Y. The question I was going to ask was whether the law 
of Virginia should control, or the (Constitution of the United States, 
in the determination of these questions ? 

Mr. Thurston. T do not read in the Constitution of the United 
States that a State is prohibited from fixing the quaHfications of an 
elector of that State. I do not read in the Constitution of the 
United States that a State is prohibited from defining the qvialification 
of a man who can be a cancficlate for office: not the qualification as to 
whether or not a man can hold a seat in Congress, but to determine 



200 PARSONS vs. SAUNDERS. 

the question as to wliether or not he can go upon the ballot in the 
State as a candidate for that office. 

Mr. KoRBLY. Governor Montague said the other day, and I believe 
he was right, that a Representative in the lower House of Congress 
not only represents the people of his State but the people of all the 
States. Now, do you contend that the State of Virginia has a right 
to limit the qualification for a Representative in the lower House 
of Congress as against the regulations set up b}^ Congress ? Is not 
that a little arbitrary restriction ? 

Mr. Thurston. I do not. I do not contend for anything of that 
kind; but I do contend that as far as the procedure and the manner 
of conducting the election is concerned, the way in which a name 
shall get upon the ticket, what is necessary to be done in order to 
entitle that name to be placed upon the ticket, what is essential in 
the first instance to the qualification of candidacy, I insist that that 
is within the power of the State unless Congress, or until Congress 
sees fit to exercise its constitutional power and takes that matter out 
of the hands of the State and legislates for itself. 

Now, for instance, every man, you will say, has a right to a seat in 
Congress who possesses those qualifications fixed in the Constitution; 
and yet in many, and many, and many States there is a provision 
that no man can go upon the ticket who is not nominated by a 
political convention of a recognized party in the State, unless he 
presents, as a prerequisite to the qualification of candidacy, a peti- 
tion signed, we will say, by a thousand or by 2,000 or 10,000 people. 
The law excludes him from the ticket as a candidate on that ticket 
unless he complies with those provisions of the local law. Is that 
violative of the enactment of Congress as to what qualification a man 
shall possess when he comes here ? 

The Chairman. Had Elliott Mathew been nominated in the fifth 
judicial district, would not the secretary of state have been com- 
pelled to leave him off of the ticket because of his insanity ? 

Mr. Thurston. The law of Virginia does not recognize party nom- 
inations. That is a question I will not go into at this time. But if 
it did, then even a party nomination of a man disqualified for candi- 
dacy must be respected. 

Mr. Saunders. Before you go further, may I ask you a purely legal 
question ? 

Mr. Thurston. Yes, sir. 

Mr. Saunders. By the constitutions of some States the judges of 
the supreme court are ineligible for Congress. For instance, as I 
showed on yesterday, a justice of the supreme court of the State of 
Kansas was held ineligible to a seat in Congress. Congress held that 
he was eligible. Do you think that the State of Kansas could have 
said to that man, "Well, you are eligible to a seat in Congress, but 
we are not going to let you run so that you can present your claims 
to a seat to that body? Is not that getting at a result indirectly 
instead of directly? 

Mr. Thurston. Yes, there is a wide and clear distinction between 
the question of eligibility to a seat in Congress and the regulations 
which may be lawfully prescribed by a State as to the manner in 
which and the time when a man may get his name upon the official 
ballot of the State and be voted for. 



PARSONS VS. SAUNDERS. 201 

Mr. KoRBLY. The very question that is involved liere is the ques- 
tion of liis eh^ibiHty to a seat in Congress. 

Mr. Thurston. No, no. 

Mr. KoRBLY. And not getting on the baUot. 

Mr. Thurston. No, I beg your pardon; not fiom m}' standpoint. 
There is no (juestion hei'e involved as to the eligibility to the Congress 
of the United States. You may have dead men here if you want to. 

Mr. KoRBLY. There are some here. 

Mr. Thurston. That may be; I would not dare to say that. It 
has already been admitted, I think, that there have been insane 
Members. But this question does not, in my judgment, go to the 
question of the eligibility of a man to a seat in Congress; it goes to 
the question as to whether or not he has in a legal way been placed 
upon the ballot, so that he is a candidate on that ballot. You might 
as w^ell say that the State can not prescribe anj" method or manner of 
voting because, unless a member qualified for a seat in Congress com- 
plies with those requirements, he can not get voted for. You might 
just as well say that the State has no power to pass any legislation as 
to the manner of the conduct of an election, or as to how a man can 
get his name before the people. 

Mr. Saunders. Just one question, if you will pardon me, in that 
connection. As a matter of fact, suppose that there was no official 
ballot, and suppose a district, as a matter of fact, elected a man who 
was ineligible by the laws of that State; they could not keep from 
allowing him to come uj) here and take a seat, could they? 

Mr. Thurston. No, sir. 

Mr. Saunders. Then, as a matter of fact, we find, whatever the 
questions you raise ma}^ be, that Mathew's name is on those ballots; 
the voters", as a matter of fact, could vote for him, and some voters 
did vote for him. 

Mr. Thurston. Your speculative question makes me think a good 
deal of the little girl that was found crying, and on being urged to tell 
what was the matter she told her mother that she got to supposing 
that she v/as grown up, and then she sup})osed that she was engaged 
to be manied, and then she sup})osed that she got married, and then 
she supposed that she had a baby, and then she supposed that the 
baby died, and that was what made her cry. But irrespective of 
supposition, I will answer that. If you have no condition in your 
election statutes as to how a man may place himself in the attitude 
of being voted for at your election, people can do as the}^ please, and 
it will be up to Congress then to pass upon the question whether a 
man is qualified to sit in this body. 

The Chairman. Senator, I just want to suggest a rather curious 
situation. Following Judge Saunders's argument for a moment, and 
assuming him to be, as we all know him to be, absolutely and highh' 
qualified for a position in Congress, might it not be under his argu- 
ment that if he went and wrote a letter to the Secretary of State and 
did not have the two attesting witnesses, jet being unquestionably 
qualified for a seat in Congress, he might be heard to say that the 
Secretary of the Commonwealth did him an injustice in leaving him 
off of the ballot ? 

Mr. Thurston. He must com])ly with the law, and the whole (jues- 
tion is whether the State has the right to prescribe these laws which 
resrulate the manner of holding an election. 



202 PARSONS vs. SAUNDERS. 

The Chairman. You do not take the position that if the people in 
the district had elected Elliott Mathew by a clear majority, and 
since that time he had gone before a proper court of the State of Vir- 
ginia and had been restored to his sanity and adjudged sane by the 
court there, and he was here now asking for a seat, we would have a 
right to seat him, do you ? 

Mr. Thurston. No; I wilJ go a step further. I do not care whether 
his sanity had been restored judicially or actually. 

The Chairman. ¥/e could seat him ? 

Mr. Thurston. You could seat him; but he had no right to go on 
that ballot unless he complied with the law. That is the point. 
Now, going back to that a moment, I insist that the word "person" 
means a person who is under the laws of Virginia capable of being a 
candidate for office, and that if the notice had been signed by a 
woman, the secretary of state would not have been authorized to put 
her name on that list, although she is a person but not an elector and 
not qualified to be a candidate for office; that if that notice had 
come to him with the name of a man whom he knew to be an alien 
just landed in the United States, he would not have been authorized 
to have placed that name upon the official ballot, and for the same 
reason; that if that notice had come to him from a person whom he 
knew to be an infant, not yet 21 years of age, he would have had no 
right to place the name of that person upon the ballot. If that be 
true, then there was a duty under this law imposed upon him to first 
determine as to whether or not the person sending in this notice was 
a person such as was intended under the statutes of Virginia, might 
send in that notice. 

Mr. KoRBLY. A man might not be an infant, and still not be eli- 
gible to a seat in Congress under any possible rules of construction. 

Mr. Thurston. I understand that; but so far as my contention is 
concerned, I am eliminating the discussion of this question of eligi- 
bility to a seat; I am discussing the question of whether or not that 
name had a right to go on the ballot, not the question of whether the 
people had a right to vote for him. I do not have to go to the point 
to see what the effect is of any name placed by an elector on that 
ballot at the polls, whether that is the name of 'an insane person, or a 
woman, or anybody else. I am presenting the question whether his 
name had a right to be on that official ballot, and that is the only 
question. My position is that the secretary of state under that law 
must ascertain — and it is an easy thing for him to ascertain — whether 
the person so notifying him is qualified to be a candidate for office, 
and if that information comes to him upon the face of that notice, or 
if it comes to him of his own knowledge, or if it comes to him from 
seeking, or if it comes to him from suggestion from outside parties, 
it must be true that where he has the knowledge in time to have that 
name eliminated or not on the ballot at the election morning, it is 
his duty to see to it that that name does not go to the polling places, 
and thereby confuse the electors of the State in that manner. 

So I say that he had no right to place this name upon the ballot. 
So I say further, and I only' refer to it just for a moment, because 
time is running against me ; this notice sent in by Elliott Mathew was 
no notice at all. It was the act of a man incapacitated at law to serve 
a notice of that kind, to execute a notice of that Idnd, to give a notice 
of that kind. In law it was the act of a person dead at law, so far as 
his execution of any instrument of a legal character was concerned. 



PARSONS VS. SAUNDERS. 203 

Mr. Saunders. Will you let me ask you one question, and then I 
will not ask any more, because you have been most courteous. I 
know you would freely allow interruption if you had the time. What 
I want to ask is this: As a matter of fact, Mathew's name was on the 
ballot. Now, it has been conceded here that a voter could vote for 
Elliott Mathew either by writino; his name on the ballot, after scratch- 
ing out all names, or by scratching out the other two and leaving his 
name there. It is admitted that a voter who did this voted for 
Mathew. 

Mr. Thurston. I do not say I admit it; I only say that I am not 
jji'epared to argue the contrary. 

Mr. Saunders. Now, conceding that, here is a voter who is a free 
agent; he finds on the ballot names which, so far as he knows, are 
those of sane persons, and he marks out one of them and leaves the 
other two. What is the effect of that upon that ballot ? 

Mr. Nelson. That is the question that I put to Judge Saunders. 
Conceding now that he did not get on there regularly, yet in count- 
ing those votes we have got to determine the intent. How are we to 
determine whether or not the same intent was in the mind of the man 
that left two names, one that of a sane man and one of an insane man, 
in comparison with the case where the voter deliberately scratched 
the two names in order to vote for the insane man ? How are we to 
distinguish by any rule the matter of intent in that case ? 

Mr. Thurston. That question must come down to two suggestions. 
The first one which we made and which I now make here and was 
about to follow up is that his name had no right on that ballot, for 
the two reasons I have stated, that being the attempted execution 
of a notice by a person insane and practically dead at law, it was null 
and void in the beginning; that its being printed on that ballot had 
no more effect than if the secretary of state, without notice from 
anybody, had printed the name of John Jones on that list, in which 
case I suggest — I do not know that my legal acumen is infallible — that 
if the secretary of state places a name on that ballot unauthorized 
in any way to be there, that name having no right to be there must 
be treated as if it were not there, and let the question of intent follow 
an examination of each ballot in consideration of the proposition that 
that name must be treated as a blank space on that ballot. 

Mr. Saunders. Senator, in the State of Virginia we had a case in 
which we had to carry the name of a dead man on the ballot. That 
name had to be scratched out when the voter came to vote. 

Mr. Thurston. I presumed you carried the names of a good many 
dead ones on the ballot. 

Mr. Saunders. He was a dead man at the time the voter voted and 
we had to furnish for use in the State of Virginia 1,500 rubber stamps 
to be used to strike out that man's name, and insert another. 

Mr. Carrico. His name had been printed on the ballot already. 

Mr. Saunders. His name w^as there at the time that the voter 
voted. He had to strike out his name in order to make his vote 
legal. 

Mr. Thurston. Now, if this name had no right to be on that ballot, 
and if you can not treat it as a nullity for either of the two reasons I 
have suggested, then there are other methods of ascertaining the 
intent of the voter in respect to those ballots where the names of one 
real candidate and of Mathew were left unscratched, and to those 



204 PARSONS vs. SAUNDERS. 

two methods of ascertaining the intent of the voter I commend the 
committee. 

It is shown in this testimony that all through that district in an 
exciting campaign of public discussion and of great newspaper vigor, 
the only two names which had been publicly announced or brought 
to the attention of the people were those of Saunders and Parsons, 
the two candidates of the respective parties. It is in the proof that 
at the hustings and in the press the only voice of announcement that 
was ever heard that reached the ears of the people was the announce- 
ment that Parsons was the Republican candidate and Saunders the 
Democratic candidate. In determining the intention of a voter 
you must find out first what information he had upon which he wias 
acting when he came to mark his ballot, and with that purpose in 
view you must find as a matter of fact from the testimony that the 
voters when they went into the election booths, not knowing in 
advance that the name of Mathew would be found upon that ticket, 
went in there with the belief and the understanding that they were 
to scratch names as betw^een the two candidates whom they knew 
to be the only candidates upon the ticket, or running before the 
people. 

Not only that, but I go a little further, and I say in view of the 
fact that so far as the popular knowledge was concerned there were 
but two candidates for Congress, those of the opposite political 
parties, and that for an elector to have erased one of those names is a 
clear expression, first, of his intention not to vote for that man; and 
you will naturally agree with me, if he does not erase anything else 
but that name, whom he thereby declares he does not vote for, and 
also in view of the public understanding of the question and of his 
own understanding, that it was his intention to vote for one of the 
real candidates whose name appeared upon that ballot. 

Mr. Nelson. That would be plain if there had not been the fact 
that there were fifteen votes for the insane man; and that is the 
difficulty with me. Senator, and I would like to have you eliminate 
that troublesome thing, if you can. 

Mr. Saunders. Before you get to that, there were three presiden- 
tial tickets on the ballot that were not as well known in the district 
as Mathew, and did not get as many votes. There were a great many 
of these ballots that were not scratched at all, as to the presidential 
part of them. Would you take those presidential ballots, where 
merely Bryan had been scratched out, and vote them for Taft, 
although the voter had not erased the other names ? 

Mr. Thurston. I would not, for the reason that many of those 
names were properly and legally on the ballot. 

Mr. Saunders. But that is not the point. 

Mr. Thurston. Oh, yes, it is. I say that what I am arguing now 
does not apply if Mathew's name was legally and properly on the 
ballot. If it was not legall}^ and properly on the ballot, then I am 
discussing what rule should be applied to ascertain the intent of the 
voter upon the ballot that you have before you. Now, I am stating 
a general rule; there may be exceptions, and as against the general 
rule testimony can be considered to the effect that the voter did know 
Mathew's name was on the ballot and marked his ballot with that 
understanding. For instance, you might, in the case of any particu- 
lar ballot, if it were known who cast it, or you might, I think, call up 



PAKSONS VS. SAUNDERS. 205 

from the body of tlu> citizenship, if you knew someone who had voted 
at a particular polhn^ place in this way, and you could prove if it 
were the fact, and I think you could go into the whole question of 
public knowledge, if you wanted to go to that extent and pay the price 
tor it, to show tliat individual voters, or that voters generally, or that 
a number of the voters, or that voters in some precincts and not in 
others, knew before they went to the election or went into the booth 
that Mathew's name was to be one of the names that they were to 
consider when they got inside. 

Mr. Nelson. Is there testimony to show what the intention was, 
outside of the l)allots ? 

Mr. Carricc). In some instances. 

Mr. Thurston. Practically none. My contention is that on a ballot 
which simply discloses the elimination of one of the candidates, imder 
the circumstances I have outlined, the intention must be prima facie 
an intention to have voted for the other. Where there is, however, 
on the ballot any other mark, such as scratching out the names of 
both candidates and leaving Mathew's name, where there is any 
mark that indicates on the ballot itself that the elector did not intend 
by simpl}^ scratciiing out the name of one of the real candidates to 
vote for the other, of course that proof must be accepted and is 
conclusive of the intent. 

I want to say now only a word or two further in connection with 
this matter. The knowledge of the disqualification of this candidate 
did come to the secretary of state of the dominant political party 
in time to have had this name taken from the ballot. 

They say he could not have done it, and they ask to be pointed to 
some provision of law by which he could have withdrawn that name 
from the ballot as sent out. There is no specific provision of law, for 
the law had never contemplated that a case might arise where the sec- 
retary of state, without making an inquiry, without ascertaining the 
truth as to the underlying facts, would place the name of a woman, 
of an alien, or an infant, or a convict, or an insane man on the official 
ballot. And if, prior to sending out a name of that character, he had 
not investigated and ascertained that the person sending in the notice 
was such a person as the law intends that he should be — that is, a 
qualified elector, then if he should ascertain it afterwards it is in his 
power at all times up to the morning of the election to undo the illegal 
work which he has inadvertently or otheiwise done. 

Now then, going back a little to the question of the intent of the 
voter, and of how the placing of that name on that ballot was preju- 
dicial to the interests of Mr. Parsons. That notice was written by a 
man in a store in the presence of two members of Mr. Saunders's 
party. One of the witnesses to it became a witness to it without 
Ivnow^ng Mathew at all, under these circumstances. Mathew asked 
a young man there at the store to be a w^itness to that, and he de- 
clined, but said "Here is a man who wdll be a witness to it." This 
man witnessed it, but fuiding out what it was, he stated "I will sign 
this, all right, as a witness, but 1 intend to vote for Judge Saunders." 
It came from Democratic surroundings; and I am not speaking 
offensively now. Great Lord, out in my State I used to have as 
many real good Democratic supporters, I think, as Republican. 

Mr. Saunders. Well, there are a number of Republicans who suj)- 
port me. 



206 PAKSONS vs. SAUNDEKS. 

Mr. Thueston. This originated from a Democratic source. The 
man who signed it was a Democrat; it was sent by Democrats to 
Democratic officials. It never became pubhc to the RepubHcan 
electors. Take the testimony in all its length and breadth, there is 
the mere suggestion of an incident, as you might call it, where it had 
been stated in some paper or somewhere in one locality that he was 
a candidate for office, the general fact that he was a candidate for 
office had never come to the attention of anybody in the Republi- 
can party in the Fifth Congressional District until the morning of 
the election. 

Mr. Saunders. No; it was sent out as a news item from Rich- 
mond, by a newspaper reporter there, to a metropolitan journal in 
Lynchburg which came out two weeks before the election, and went 
all over the district. 

Mr. Thurston. I am not going into an analysis of the testimony 
on that point. My time is too short. But I say, and the proof will 
show, that for all intents and purposes the Republicans of that district 
never had any knowledge or thought that there were to be any names 
on that ticket except the names of Parsons and Saunders. The Dem- 
ocrats, however, did know it. It had a Democratic origin. It went 
into the hands for action of a Democratic official. It was sent out to 
Democratic committees; it was put into the hands of Democratic 
printers under a requirement of the law that the contents of those 
official ballots should be kept secret by the printers. The secretary 
of state knew it. The men who signed it as witnesses knew it. The 
county committees knew it. The local printers knew it. And there 
the information in every precinct in that county was in the possession 
of Democratic men before the ballots were printed and before the day 
of election. 

I am not charging that they did anything wrong about that. That 
is not my purpose at this time, although I do suggest that the whole 
manner and method of getting that name upon the ticket bears the ear- 
marks of a scheme originated by somebody whereby to give an undue 
and unfair advantage to the candidate on that ticket, who was not Mr. 
Parsons. But they knew it, and if the secrecy of the law was pre- 
served, as I presume it was as far as its reaching any Republican peo- 
ple was concerned, the Republicans of that district had no idea until 
each individual went into the polling place that that name was upon 
the ticket, and it is in view of all this testimony that you must deter- 
mine, if you fairly can, what was the intention of the voter in thus 
marking the ticket. 

And now, just for a little while, and onl;y- for a little while, I will 
discuss the two constitutional questions arising in this case. I am 
at some loss as to the order in which I shall present my views on 
these two constitutional questions, but I have thought, on the whole, 
I would present to you first the question as to whether or not the act 
of the legislature of Virginia taking Floyd County from the fifth 
district and placing it in the sixth district was in violation of the 
constitution of the State of Virginia, as well as in violation of the act 
of Congress relating to apportionment of Representatives among 
the States. I will follow this by the question as to whether or not 
the constitutional power of making an apportionment after each 
census is exhausted by one act of general apportionment. As I have 
already stated, the judicial power of the Congress of the United 



PARSONS VS. SAUNDERS. 207 

States to pass upon this (iiiestioii is unlimited and undoubted, and 
in the absence of a decision placing a construction upon that pro- 
vision of the constitution by the su])renie court of Virginia, Congress 
is free to express its own deliberate legal judgment as to the proper 
construction and interpretation and a])plication of the provisions 
of the Virginia constitution, just exactly as a federal judge would 
have unlimited judicial power, if, acquiring jurisdiction of a case by 
reason of diverse citizenship, there should arise in that case, and 
necessary to the determination of the respective legal rights of the 
parties, a (|uestion of the construction of the constitution of a State. 

That federal judge in that case having jurisdiction of the subject- 
matter and of the })arties would not only have tJie right, but it would 
be ins duty, to place a judicial construction upon the constitutional 
requirements of a t)articular State where that constitutional pro- 
vision was involvecl in determining the rights of the parties. So 
there is no question about your power, there is no question about 
your propriety of action. You must decide this case as the first 
court that has had presented to it the question of the construction 
and application of the constitution of Virginia to this case. If the 
final tribunal of Virginia had construed that section of the constitu- 
tion, Congress then would have been in the same position as every 
court of this country is in; it would undoubtedly in all ordinary 
cases follow the construction placed upon the local constitution or a 
law of peculiar local application, by the supreme court of the State. 

It would follow it not because the decision of that supreme court 
is absolutely binding in that respect upon this tribunal or upon any 
other court, state or federal, in any other jurisdiction where the con- 
struction of that constitutional provision is called into question; it 
would follow it not because it is binding, but because it is always 
assumed, in the first instance, that the decision of the highest tribunal 
of the State construing its own acts is correct. But cases may arise, 
and the j)ower exists, where the court may not be willing to follow, 
may not believe it is right to follow the decision of the supreme court 
of the State — and there have been such cases — and in such cases 
courts will refuse, and have refused, to follow the local construction 
and interpretation of a constitution or the statute of a State. But 
that is neither here nor there. It is for you now, as a supreme tribunal 
of justice, having full judicial power, to decide this as a new question, 
and to place for the first time upon the constitution of the State of 
Virginia a judicial construction and interpretation. 

Just for a moment I wish to refer to the oft discussed and mooted 
question as to whether or not Members of Congress are, in that sense 
of the term, state representatives or representatives from the people 
of their districts. That discussion in the past raged and was waged 
on many important political battlefields. It was never decided. 
Nobody knows what may possibly be the ultimate determination 
of that question. And yet I think that it has become to-day the 
really settled judgment of this country that the Members of Congress, 
as contradistinguished from the Senators, provided for under the 
Constitution are representatives of the people of their districts and 
that the Senators are the representatives of the States. This would 
be equally true whether the State is divided into congressional dis- 
tricts or not, because if in the absence of the districting of the State 
they are elected by all of the people of the State at large, still that 



208 PAESONS vs. SAUNDERS. 

is the district of all of them, contradistinguished from a State as a 
State; it is the district, and they combined are the representatives 
of the people of that district and not the representatives of the State. 

Now, the Constitution provided that the manner, time, and place 
of choosing Representatives shall be fixed by the legislatures of the 
respective States — I may not use the exact language, but that is the 
idea — and that that power should remain with the States until Con- 
gress sees fit to act in that respect. I have always believed, and I 
still believe, that the power under the Constitution is in the State 
and in the makers of its constitution, and in its legislative bodies, to 
take charge of the entire manner of conducting the election, to estab- 
lish the necessary regulations for its conduct, and, in fact, to do 
everything requisite that must be done in order to secure the desired 
results, and that power remains with the State until Congress other- 
wise acts. But all the time this same measure of power, no less, no 
more, though dormant, remains with the Congress of the United 
States and may be exercised at any time by congressional action, 
which then becomes controlling and is supreme. 

Mr. KoRBLY. Can that power be exercised by one-half ? 

Mr. Thurston. I am not going into that, but I say by Congress 
it may be exercised, in toto, or pro tanto, or wholly. Now Congress 
has undertaken to exercise a part of that power with respect to the 
manner in which congressional districts shall be made. Up to 1842 
there was no act of Congress by which it was ever attempted to inter- 
fere with the States in the manner of the creation of congressional 
districts, or as to whether they should have congressional districts 
or not, and up to that. time the power, being entirely in the State, 
of course their Representatives, elected in any way the state statutes 
provided, were seated and must have been seated in the Congress of 
the United States. At that time Congress made its first move toward 
taking away from the State some little measure or part of that 
exclusive power to regulate the manner of conducting elections; and 
when I say that it took away some part of that power I say it because 
Congress could not take to itself by legislative enactment the appli- 
cation or use of a part of that power without taking that part of the 
power away from the State. » 

Congress did take to itself in 1842 sufficient of that power to pro- 
vide that Representatives should be elected in the respective States 
by and from congressional districts, to be composed of contiguous 
territory. That is as far as the act went at that time. Similar acts 
were passed under different censuses for a considerable time, and then 
certain other census acts omitted that provision and there were 
periods when there was no law on that question. Then in 1901 Con- 
gress enacted that the Representatives should be chosen from dis- 
tricts, to be established by the State, of course, but with certain limi- 
tations as to the manner of their establishment and of the character of 
the districts themselves. Congress provided that those districts 
should be composed — we will interpolate into the law "as far as 
practicable" — of contiguous territory and compact territory, and that 
they should contain — we will say again "as far as practicable" — a 
proportionate distribution of the population. 

Mr. KoRBLY. Now, may I ask you a question ? 

Mr. Thurston. Certainly. 



PARSONS VS. SAUNDERS. 209 

Mr. KoRBLY. Any interpretation of that act as made by Congress 
itself would have considerable weight with this committee. 

Ml-. Thurston. Undoubtedly, and I will i-efer to that on another 
l)hase of the question. Tiiat act meant something. That act meant 
the assertion of some measure of power on the part of Congress to 
control the character of districts from which its Members should be 
selected. Now, to say that after that enactment of Congress the 
whole })ower, the extreme j)ower, the unassailable power, of estab- 
lishing those districts, willy-nilly, regardless of population, regard- 
less of contiguity, regardless of compactness, was in the legislature of 
Virginia exclusively, supreme, unassailable, is to say that this act of 
Congress was without any vital force or effect whatever. As to just 
how far that act withdrew from the supreme control of the legislature 
of the State its power in respect to the establishment of congressional 
districts we will consider a little later; })ut Congress did by that 
enactment withdraw from the States some part at least of the supreme 
])ower it had formerly placed in them to define their congressional 
districts according to their own wishes. 

Now, for the purposes of convenience and time, I am going to argue 
the application of the law of Congress and the constitution of Vir- 
ginia to this question at the same time. They may apply in a little 
different way, but for the purposes of this argument, and knowing 
that you gentlemen do not need to be pounded and pounded to death 
on a legal proposition, I am going to do that. I only want to give 
you enough of a glimpse of it so that you may follow tlie light thus 
acquired, and I shall combine the two. 

I come, then, to this proposition, that somewhere the power exists 
to determine whether or not this enactment of Congress and that 
provision of the state constitution of Virginia have been violated. 
The power exists somewhere. Where does it exist? That power is 
in this supreme judicial tribunal created for the purpose of trying 
this very kind of a case. It must be here. If you tell me that Con- 
gress having enacted that statute has no power through any judicial 
tribunal in this country to enforce it; if you tell me that, you might 
just as well tell me that it has no power to enforce any other of its 
enactments. 

The power does exist and it exists in you. Whether you will 
exercise that power or not is in your wise judicial discretion. How 
far you will exercise that power is in your judicial discretion. In 
each particular case presented to you the question as to whether or 
not that section of the law of Congress has been so far violated that 
you as a judicial body will step in, is for you to determine. In 
making this proposition I am doing no more than all the courts of 
this country have done, and I insist that you will find in all these 
election cases it has been so decided; and there is no possible dif- 
ference in any of them on the one vital question of the power of the 
courts to set aside even a constitutional provision, say nothing of a 
statuatory enactment, if it is in disregard, clear disregard, of a supreme 
law of the land. 

All of them say so. It is not a question of power; there is not a 
court in the United States that denies to the judiciary the right to 
determine that an apportionment in a State is unconstitutional and 
void if the facts in that particular case show that there has been a 

S8069— 10 14 



210 PAESONS VS. SAUNDERS. 

refusal, a brutal and violent and inexcusable refusal, to comply with 
the provisions of the constitution of the State or the act of Congress. 
I grant you the courts will interfere with great hesitation in every 
case where it is sought to compel them to decide that a constitutional 
provision has been violated, and especiallj?^ in a great ^natter like this 
of apportioning the members of the legislatures in the respective 
States and of Congress in the United States ; but in every one of these 
cases the courts say that the power exists in the court, and the ques- 
tion not of law but of fact in every case presented that the court 
must pass upon is, has the failure of the legislature been so gross and 
so willful, or has its action been of a character to set at defiance and 
to utterly disregard and annul the constitutional provision ? If it is, 
then the law as read by Judge Saunders here to you, gives Congress 
the power which it should exercise and which it has in fact at times 
exercised. 

Mr. Bennet. Would it interrupt you if I ask you a question on 
that line ? 

Mr. Thurston. Not at all. 

Mr. Bennet. Assuming that we find the legislature of Virginia had 
the constitutional right to pass the second constitutional act, and then 
we find that the act was unconstitutional under the fifty-second 
section of the constitution, there comes a further question, that is, 
what were the rights and obligations of citizens of Virginia in relation 
to the districts ? Did the act of the legislature, assuming it to be 
unconstitutional, nevertheless create a de facto district which the 
citizen was bound to respect ? 

Mr. Thurston. I am coming to that a little later on, but I will say 
now that the courts have held that an unconstitutional apportion- 
ment is in fact no apportionment. In other words, a district de- 
scribed and defined by an unconstitutional act, is no district either in 
law or in fact. 

Mr. Thurston. Not discussing 3^et, as you will see, the other con- 
stitutional question as to whether the power once exercised can be 
exercised again — I have not got to that yet — I come now to the 
question, was the act of the legislature of Virginia of 1908 in accord- 
ance with, or was it a clear, express, brutal, unwarranted, unexplain- 
able violation of, the constitution of the State of Virginia ? Let us 
see what that constitution provides. 

Mr. Bennet. I have that here. Senator, and I will read it if you 
would like me to. 

Mr. Thurston. Very well. 

Mr. Bennet (reading) : 

The general assembly shall by law apportion the State into districts corresponding 
with the number of Representatives to which it may be entitled in the House of Rep- 
resentatives of the Congress of the United States; which districts shall be composed 
of contiguous and compact territory containing, as nearly as practicable, an equal 
number of inhabitants. (Art. 5, sec. 55, Constitution of Virginia.) 

Mr. Thurston. What I want to call the attention of the commit- 
tee to is the language of that constitutional provision, which says 
the legislature shall apportion the Representatives to districts created 
in such and such a manner. It provides for what is thus by consti- 
tutional provision, declared to be an apportionment. Now, here is 
what I say. If what they did in 1908 was not in any sense an appor- 
tionment tested by any rule under the most favorable consideration 



PABSONS VS. SAUNDERS. 211 

in favoi- of the power of the loo;islatiire, if it was not an apportion- 
ment, then it was not in accordance with the constitutional provision. 
The}^ had ah'eady apportioned tlie State into representative districts 
in 1906, two years before. Four years before that the legislature 
had passed a law similar in character, although extending to all the 
districts of the State; but in certain respects and as to certain dis- 
tricts similar in character to the inequalities and injustice of the one 
now before tliis committee; and the governor of that State at that 
time had called the attention of the legislature to the fact that such 
act of theirs, although a general apportionment act, was unconsti- 
tutional and in violation of the constitutional provision with respect 
to tJie apportionment of Members of Congress, both as to contiguous 
territory and compactness, and as to population. 

That was the decision of the executive of the State, but it was so 
quickly and readily recognized in and accepted as a true statement 
of the constitutional construction that that veto was not even called 
up in a legislature w^here many more than sufficient members of his 
own party, who had already voted for the bill, remained in each 
body to have passed it over his veto. 

Mr. KoRBLY. Was not that because it was sent in on the last day 
of the legislature ? 

Mr. Thurston. I understand not. I understand that the veto 
was simply left to lie there without a voice of protest from the legis- 
lature which the governor had thus charged with violating the con- 
stitutional requirements. And there it remaineil, a notice to every 
succeeding legislature of the State that the proper construction of 
the constitutional provision in Virginia was that there must be a 
compliance with the Constitution in an apportionment of Representa- 
tives into districts in the State — that there must be a fair effort made 
to comply as to compact and contiguous territory and as to equality 
of population with the provisions of the Constitution. The State 
acquiesced in that veto. Two years later a new legislature acquiesced 
in that veto, and again two years later another legislature acquiesced 
in the governor's constitutional construction, and passed a general 
apportionment act, measurably comph ing with the requirements of 
compactness, contiguous territory, and equality of population. 

These districts w-ere establisheVl in 1906. Whether the legislature 
thereafter had the power or hatl a continuing power and a remaining 
power to again apportion Rei)resentatives is a question that I will 
discuss very briefly soon, but not here. But what I insist is that the 
act which they did pass in 1908 was not an act which can upon any 
construction of that constitution of Virginia be claimed as an ap- 
portionment act. I want you to understand wdiat an apportionment 
means. Were astronomers called upon to apportion the bodies of our 
solar system, they would not do so by taking from Venus and adding 
to Jupiter, or by taking from the moon and adding to the earth. 
That is not an apportionment. An apportionment, under every 
definition of it you can find in dictionaries or in judicial decisions or as 
expressed by prominent men of letters, is a bringing nearer, a bringing 
nearer to equality. That is the sum and substance of the definition : 
it is bringing nearer to equality. That is an apportionment, and the 
rending apart of an apportionment already made is not a new ap- 
|)ortionment. 



212 PARSONS VS. SAUNDEES. 

Of course this act of the legislature affected four congressional 
districts. It took two counties away from two districts and put 
them into two others. But I will only discuss it as it takes Floyd 
County away from one district and puts it into another. There is 
this district on the map. Is the eyesight of man so blind that it 
can not see, or is it so perverted that it can not see, that the taking of 
that county from the fifth district as theretofore established did not 
result in more compactness or greater contiguity of territory? In 
taking away that portion from a district lesser in population than the 
one to which the county is transferred, can the mind of man con- 
ceive that such act is an apportionment, a bringing nearer to an 
equality, as between those two congressional districts ? Suppose 
this legislature had excluded by a single act Floyd County from the 
Fifth Congressional District, and stopped right there, placing it 
nowhere; would that have been a constitutional exercise of power? 
No man will say that it could be. Then how is it made constitu- 
tional because, after taking it away from that district, it places it in 
another district ? 

Mr. Saunders. Senator, if the fifth district is less compact, the 
sixth district is made more compact. On the whole the latter is made 
a better district than it was before. 

Mr. Thurston. I am not arguing anything about the sixth district. 

Mr. Saunders. Yes; but I am saying that on the whole the prin- 
ciple of compactness is not violated. If one district is made less 
compact the other is made more so. 

Mr. Thurston. Well, that has not been pointed out, and I do not 
think if you will look at the map it will follow, at all. But it does 
not make any difference. The power to apportion or to reappor- 
tion does not mean the power to take from an established district 
and add to another district, unless there can be at least conceived; 
behind it all, some purpose to more nearly establish an apportion- 
ment — that is, an equality — between the districts. 

Now, nobody on earth has ever pointed out any possible purpose 
underlying this act to more equally apportion representatives as 
between those two districts. Nobody has suggested it, and nobody 
can do so. You read the answer on the face of the map. You read 
it in considering the population. It is taking from the less and giving 
to the greater. You read it in every surrounding fact that can be 
discovered. You read it in the fact that the governor of the State, 
six years before, had solemnly notified the members of the legislature 
that they were violating the constitution when they attempted a 
similar outrage upon the political rights of the people of the State. 
They took away from the less and gave to the greater. If that is an 
apportionment, that individual act of taking away from the less and 
giving to the greater, I do not understand what an apportionment is. 

Now, I could not make so strong an argument upon that particu- 
lar proposition if this were an act which on the face of it purported to 
apportion congressional districts throughout the entire State, because 
when the legislature acts upon a general apportionment it must be 
conceived, and is at least conceivable and supposable, that under- 
lying the general harmony that must be secured reconciling differ- 
ences and at last securing an entire apportionment of the whole 
State into districts, there must be some concessions here and there, 
and some resulting inequalities. I can conceive that a court would 



PARSONS VS. SAUNDERS. 213 

be very reluctant to say and would hesitate long' and ])roperly so 
before it would ever say, although it has the j)ower to say, that an act 
of a])j)ortionni(Mit of the whole State into districts is so disregardful, 
so outrageously (hsregardful, of the act of Congress and the constitu- 
tion of the State that it is null and void. 

But here there was a general apportionment in 1906 which the legis- 
lature necessarily declared was a fair and just apportionment of the 
State into congressional districts. Two years later, without any 
attempt to readjust the (hstricts throughout the State, they passed 
an act of political rapine, by which they seized from the belly of one 
district a portion necessary to be taken away in order that the domi- 
nant political party in power should have a certainty of sending to 
the Congress of the United States another Representative. 

Talk up and down and say nice things as mucli as you please, Gabriel 
himself, if he were to announce any other purpose in that enactment, 
would not have a listener within the boundaries of even Virginia. Such 
gerrymandering has been done' by Republican States, it has been done 
by Democratic States, it has been done most outrageously by Popu- 
lists, but it was never right that it should be done. Every man 
agrees to that, and it remains, and you know it, established beyond 
all controversy, that here was a district which, as it then stood, the 
dominant party in the State of Virginia believed might be lost to them, 
and the representation of which they could make secure for their party by 
taking a thousand Repubhcan majority away from it, with utter disre- 
gard of the constitutional requirements, and placing it over in another 
district, where that majority one way or another would not cut any 
figure. 

Now, T say this, that the act is not an act affecting alone the in- 
terests of the people or of the political parties of the State of Virginia. 
That act is an act of outrage committed against every individual in 
the United States. Every man in my district in the State of Nebraska 
has a right to demand that every man sent to Congress to pass as 
well upon his own as upon our interests shall be sent there with a 
clean bill of health, and that in his election there shall be fair rep- 
resentation, given according to population, to political differences 
between the parties, and 

Mr. KoRBLY. If you will let me make a suggestion, T would like 
to say that Congress in the apportionment of Oklahoma has violated 
these very principles in a much more flagrant way than anything 
you claim in this situation. 

Mr. Thurston. I do not know anything about the Oklahoma 
situation. Congress could undoubtedly do that. It would not be 
a constitutional question with Congress; it would be a question of 
decency — political decency. 

But you can not get away from the fact that there was and could 
have been but one purpose in that so-called apportionment act, 
which was not an apportionment act at all, and that was to secure 
a certainty of a continued representation of the dominant party in 
the Congress of the United States from that district; and the result 
shows it. 

It was suggested here by Mr. Saunders that if he could explain to 
this committee, there were many reasons why this act was justified, 
why it was better for the one district or the other that these changes 
in counties should be made; but if there was any such underlying 



214 PAESONS VS. SAUNDERS. 

or proper or controlling reason, it was his duty and his right to have 
taken testimony upon that question and presented it here. If there 
was a localized community of interest existing there, that is a physical 
fact capable of exact testimony. It should have been proven. If 
there were any railroad communications so that it would thereby 
give to the people better service, or to the district as constituted 
anew better communication, that was capable of proof. 

If there were any roadways that would give any better access from 
one part of the district to another, that was a matter that could 
have been readily proven. But there is not any proof, and the case 
stands that, for what must be conceded an absolute political advan- 
tage, a district already created by proper apportionment act of the 
state legislature, it was robbed by taking aw^ay from it that particular 
portion of the district which alone had permitted it to pass muster 
as being composed of compact and contiguous territory. There is 
no excuse offered; there can be none. It was a mere political play. 
It was at the best a brutal exercise of political power, a brutal, 
inexcusable, unjustifiable exercise of political power. That is the 
best you can say. It is only defended upon the proposition that 
they had the power and had the right to exercise it brutally. That 
is all. There is no excuse for it. It was not in the interest of fairness 
or justice; it was not carrying into effect the plain intent and pur- 
pose of the constitution of Virginia and of the act of Congress of the 
United States ; it was not for the purpose of reapportioning Members 
of Congress among the districts of Virginia; it was not for the pur- 
pose of bringing them more nearly into compliance with the require- 
ments of the constitution as to equality of population and contiguous 
and compact territory. 

It was the exercise of a brutal political power, justified only because 
it is said there is nothing that can be invoked to prevent it, and you 
have the result without excuse, and with virtual admission that it 
violates all the spirit and all the purpose designed to be effected by 
the constitution of the State of Virginia and by the act of Congress. 
The only argument is that although it violates the spirit and destroys 
the purpose, it does not lie in the power of an}^ tribunal, judicial or 
otherwise, to declare that that exercise is void. 

Now, just a few words along the other line, as to whether or not 
this power once exercised, even if the second act was an appor- 
tionment act, can be exercised again during the same census term. 
I readily understand what difficulties surround us when we ask this 
committee to make a report here which would apparently and upon 
its face contradict or be in the nature of a review or reversal of the 
election case in New Hampshire, the case of Perkins v. Morrison. 
I want to be fair. 

That case did present the question of one apportionment made 
under the act of Congress of 1842 in the State of New Hampshire, 
followed by another apportionment act which changed a district or 
districts, and in that case it was held that under the constitution, 
and until or unless limited by congressional enactment, the whole 
question of apportionment was in the legislature of the State, and 
that case did hold, at least by natural and necessary intendment, 
that that was a continuing power, and it was undoubtedly the view 
of the committee at that time that it was a continuing power in the 
legislature of the State, and that one exercise of it by an apportion- 



PARSONS VS. SAUNDERS, 215 

merit did not exhaust the power or limit or prevent a further exercise 
of it. But what I wish to say on that is this. If you will look into 
that case, what was reported, and what was said in aro;ument upon it, 
there was nobody on either side of that question in their report, or 
on the floor of (V)n<i:ress, unless I am very much mistaken, who was 
ur<>:ino;, or suo:o;esting even, that the power of apportionment given 
to the State under the act of Cono;ress was a power to be exercised at 
a specified time or in a specified manner, and that one action under it 
exhausted that particular power. That really was not thought of; 
it was not considered; it was not digested — that idea. 

It is true that the decision goes to the extent of saying that, not in 
exact terms, but by fair construction, because that was a fact, and I 
do not wish to dodge it. The case undoubtedly decided that; but at 
that time, as Governor Montague says, the question had never been 
})eforc any court in this country; there were no judicial decisions to 
guide the (^ongress of the United States, and when I say "guide," I 
do not mean to control. Congress will give to all the decisions of all 
the courts due credit, and if they seem to be the judgments of delib- 
erate tribunals after full hearing, and well forfeited by o])inion, they 
are very apt to follow them. But I say at that time the question had 
never been presented before the courts in this country. It had not 
been suggested, and the necessity for it had not arisen; and in the 
New Hampshire case you will find, if you look it all the way through, 
that that particular question as to the exhaustion of the power by 
the one exercise of it was not in any way clearly or distinctly put in 
issue or distinctly thought of or considered or argued out. 

Since that time, however, the question has arisen in several States 
of the Union. I can not refer to these cases now in extenso or 
read from them, but in One hundred and seventy-second Illinois 
and in the Wisconsin case cited and in the Indiana case cited there 
at least in those three States has been an express decision of the 
precise point, as the result of three of the very ablest opinions you 
can find in the books, well reasoned out and well fortified in every 
resj)ect, and backed uj) by analogous autliority from many courts. 
There are those three decisions which decide exactly this: Where 
there is a provision for the taking of a state census or a national 
census — in Illinois it was a state census, but in the others a national 
census — and that after taking that census and that census being 
established the legislature should divide the State into legislative 
districts, the creation of those districts by a legislative act ex- 
hausts the power. I am not going to discuss these cases on the 
question of fair apportionment or contiguous territory. I have said 
enough about that. I will only say that these cases all fortify my 
})osition on those points also. But in the three States named the 
requirement was that after the taking or the establishment of a census 
there should bean apportionment; that after each census there should 
be an apportionment; and the constitution in those three States was 
silent beyond that. There it stopped. It was silent. There was no 
negative suggestion of any kind or character that they could not 
make another apjjortionment. It just sim])ly directed them to make 
one. Now, the courts in all three of those cases held that there was 
no continuing power vested in the legislature after it had once exer- 
cised it. Those courts further held that by providing the time and 
place or the time and conditions precedent to the right of the legisla- 



216 PARSONS VS. SAUNDERS. 

ture to apportion, or to the duty of the legislature to apportion, there 
arose an inhibition against the exercise of that power in any other way 
or at any other time; and I submit to this body that those three cases 
are excellently well reasoned. They are not hasty or ill advised. 
They are fortified by authorities and by the truest apj^lication of the 
proper rule of construction of statutory and constitutional provisions, 
and they decide that where the power is given or conferred, after the 
happening of an event like a census, to apportion the State, the power 
continues until it is exercised, and when exercised it is gone until 
another period, as fix:ed by the census, creates a new power or revives 
a power that has slept. 

If these decisions are correct, then, in the light of the judicial deci- 
sions of this country to-day, the New Hampshire case was not de- 
cided correctly upon that point. It is always well enough to adhere 
to precedents, but a bad precedent ought not to be followed. A 
precedent which does not commend itself to the judicial judgment 
of trained lawyers at this time should not be followed because it ap- 
pealed to the trained judgment of trained lawyers at that time. Why, 
we are changing all the time, and necessarily changing, from decade 
to decade, in our construction of even the great Constitution of the 
United States, that wonderful instrument on which hangs and rests, 
in the ultimate, the liberty and rights and property interests of every 
present and future citizen of this great Republic, the most wonderful 
document that ever was written. Yet that was written in the twi- 
light and by the candle-light of the afternoon of the eighteenth cen- 
tury, and with respect to the existing conditions and necessitijs of 
the' country at that time. If it is to remain the bulwark of our 
rights, -if it is to remain an instrument capable of preserving us in 
our increased power and prestige in our rapidly diversifying interests, 
in our expanded boundaries, in our wonderful creative and inventive 
genius, in the vast multiplication of all avenues of business, if it is 
to do all of this for the men of future generations, then, indeed, it 
must be construed according to the mightier necessities, and in the 
electric splendor of the twentieth century civilization. 

We are growing, inevitably growing, in our construction even of the 
Constitution of the United States; for national necessities,^ for the 
preser^ ation of our power, for the protection of the people, there are 
clauses of the Constitution of the United States which the judgment 
of men before these new conditions had arisen said meant one thing, 
that must, if we are to live, b*^ declared by men of a new generation, 
of a new time and new conditions, to mean other things; to mean ade- 
quate protection and guarantee of the rights, of the liberties, of the 
opportunities of the men of the future." The decision rendered in 
the old New Hampshire case on this particular point does not rest 
upon any thorough discussion of that particular point; the question 
of the exhaustion of power was really aot then thought of. 

Mr. Saunders. In that connection I want to refer you to the Con- 
gressional Globe, in which it was discussed. 

j\Ir. Thurston. I understand just how far it was discussed, and I 
still stand here to maintain what I have stated. 

Mr. Saunders. It is page 184 of this volume of the Globe. 
Mr. Thurston. Yes; I understand. I know how far it was dis- 
cussed; when I say discussed, I mean argued out. There was no 
underlvino- argument there. Thev do sav that it is a continuing 



PAKSyJSb VS. SAU^'DEK.S. 217 

power. That is not h discussion of it. »VliHt 1 suid wiis tJiat tlie 
case was not discussed on that question. 

Mr. Sauxders. 'vio;iit lieie is the flisoussion. 

Mr. Thurston. Tliat is a decision. 

Mr. Saunders. Xo; it is tlie discussion, Senatoi-. 

Mr. Thurston. But there was not any of what I call leal discus- 
sion, and there ceitainly was not any such judicial examination of 
that constitutional question, and there was no such judicial result or 
decision arrived at as has been arrived at after the calm and exhaustive 
consideration of this same question of construction of the Constitution 
by the courts in these latter days; and what I say is, wliere an old 
decision of Coru^ress stands alone. Congress, being a part of the 
judiciary of the United States, when it comes to try another case, will 
give heed not only to the decisions of its owni tribunal in the past, but will 
also take account, in announcing its new decision, of wliat the courts 
of equal jurisdiction, having under consideration tlie same questions, 
have said in other places. 

Now, there are only two things that I have omitted, and just for a 
moment I want to refer to those. Passing hastily over the case and 
reviewing mentally my argument I find that I forgot to speak of two 
questions. Going back, therefore, the question arises here as to 
whether oi' not the tax-paid lists under the laws of A'irginia were the 
exclusive method ot establishing the right of a voter to cast h's ballot 
on election day so far as the qualification of tax paying is concerned. 

It has been suggested, and I have heard it stated liere as a part of 
the argument and as argument only, that twM) judges in the State of 
Virginia have reached a conclusion which I can not feel is justified 
under their statutes on any theory of statutory construction. It is 
also stated here, also on argument, that other judges of the sam.e 
State at nisi prius have decided exactly the contrary. It, however, 
remains the fact that the supreme tribunal which has the right to 
construe the laws ot the State of Virginia and to j>lace a meaning upon 
them that can not be disregarded by any inferior court of that State, 
has not passed on that question; so that except as the reasoning 
given by the judges wdio rendered these nisi prius opinions, as Judge 
Saunders has stated here, may appeal to the reason and judgment 
and legal intelligence of this committee; they have no binding or 
authoritative weight as adjudications. And this tribunal must re- 
gard them the same as they would any other opinion of any other 
judge in any other State or anywhere passing upon a similar question. 

They should regard them as the expression of men supposedly 
learned in the law and holding judicial place, of their views of the 
proper construction of a certain statute. From my standpoint, I 
confess I may be blind, but I can see only one possible construction 
of the statute of the State of Virginia on that question of that poll tax. 
In the first place, what is its purpose ? There is only one answer to 
that; its purpose is to execute the law so that no man shall vote who 
has not paid his poll tax. It is in execution of the enforcement of 
that inhibition against the right of a nontaxpayer to vote; there is 
no doubt about that. That is what it was passed for. AVhydothey 
have a tax Hst at all ? Why is it posted up I Why is notice given ? 
It is simply an attempt of the legislature — a veiy justifiable and 
propel- attempt — to compel and secure a ballot in \^-llich there shall 
not be found, or in which it is hoped there will not be found, any 



218 PAESONS VS. SAUNDEKS. 

ballot cast by a person who is disqualified by not having paid his 
poll tax. It was a very wise and proper provision of law. It meant 
something. In the first place, the requirement is, as I have already 
stated, that the treasurer shall place upon that list the names of all 
persons who have paid their poll taxes. Having discussed that some- 
what at length, I will not go into it further here. He was required to 
place all the names on that hst. Therefore, if he performed his duty 
there was upon that list the name of every man who had paid his 
taxes. The presumption of law invoked here on yesterday is that 
every public officer will do and has done his duty and complied with 
the law. If that presumption holds in this case, then that tax list 
represents on its face not only those who have paid, but being a com- 
pliance with the statute which requires it to contain the names of all 
those who have paid, it contains on its face the absolute, unchallenged, 
uncontradicted proof that nobody has paid his taxes who does not 
appear on that list. 

Mr. Howell. Not when it is done on the presumption that every 
citizen will pay his taxes. 

Mr. KoRBLY. There is no such presumption. 

Mr. Howell. The presumption is that every one will do his duty. 
Mr. KoRBLY. I have never found that. 
Mr. Howell. Yes, it is. 

Mr. Korbly. I think you are confusing that with the presumption 
that every person who holds official position is presumed to have per- 
formed his duty. 

Mr. Howell. No; it is only on that presumption that every man 
is presumed to be innocent until he has been proven guilt}^ 

Mr. Thurston. As a matter of fact, under any law, in any case of 
this kind, the uuevidenced presumption that a man has paid his poll 
tax does not constitute any prima facie case that would entitle him 
to vote. 

Mr. Saunders. Just in that connection permit me to say this: I 
agree with that proposition, that if a man is not on the tax list, then 
the burden is on him to show that he has paid his taxes; but when he 
votes, then the presumption is that he has satisfied the judges that 
he has paid his taxes. 

Mr. Thurston. Yes; I am going to get right down to that. Wliat 
have the judges got to do with it ? 

Mr. Saunders. Because the judges of election do not do their 

duty 

Mr. Thurston. That is what I am going to argue. 
Mr. Saunders (continuing). If they allow a man to vote unless 
they were satisfied that he has paid his tax. 

Mr. Thurston. That is what I am going to argue. The law pro- 
vides that that tax list at the polling place shall be the exclusive 
proof. What is the word ? "Conclusive;" the conclusive proof. 
Mr. Saunders. Of what it contains. 

Mr. Thurston. Of what it contains. Now, by every rule of statu- 
tory construction, when the law provides that that list shall contain 
the name of every man who has paid his poll tax there is contained 
therein by intendment, just as if written in letters of fire, that no 
other man in that election district has paid his poll tax; and it is all 
there on the face of it. 



PARSONS VS. SAUNDERS. 219 

Mr. Ivouiu.Y. Does the statute really contain that, that the absence 
of a man's nanu^ t'lom that list is conclusive evidence that he has not 
paid his taxes, even although he has paid them? 

Mr. Thurston. It is conclusive proof so far as the action of the 
judges at that election in receiving his vote is concerned; and I will 
show you why. It is conclusive proof that every man on there has 
paid his poll tax; that is, conclusive for the purposes of voting at 
that election. 

Mr. KoRBLY. Certainly. 

Mr. Thurston. Now, a man comes up to the judges of election, and 
he finds the name of his neighbor, John Smith, on the list, and he 
goes to John Swith and saj^s " You never paid your poll tax," and John 
Smith sa3'^s, ''I know that." Then he brings him u]) there and he 
brings the treasurer there and challenges the vote of John Smith, and 
he takes testimony before the Judges, and it is shown by the admis- 
sion of the man and uncontradicted proof that although his name is 
on that list he has not paid his tax. Now, what are you going to do ? 

Mr. KoRBLY. Under the law of Virginia he is entitled to his vote. 

Mr. Thurston. Certainly he is. They have got to admit his vote. 
The question of its legality of course will arise afterwards on the con- 
test, as it arises here, but they have got to admit his vote. Therefore 
that list is binding on those judges, and the law does not confer any 
power on them to hear any question involved in relation to that list. 
In the only two cases where the man's name would not appear on 
this list by reason of his having been too young, or by reason of his 
having moved in from another county, the legislature has provided, 
by explicit provision that has been read here, that that man, because 
he could not have got onto that list, may vote by presenting another 
proof which the legislature says shall be good, and that is the certifi- 
cate of the treasurer of the county where the tax has been paid, and 
where he formerly resided. 

Mr. Saunders. Suppose you take the other side of the case. Here 
is a man not on the list, and he brings his tax receipt, and then in 
addition to that the treasurer, and proves that he has complied with 
that section of the constitution and claims the right to vote. Do 
you claim that that man should be excluded ? 

Mr. Thurston. He can not vote. It is the application of the same 
rule. It is the same justice. A man who is on there, who ought not 
to be on there because he has not paid, must be permitted to vote. 
A man not on there, although he has paid, can not be ])ermitted to 
vote. 

Mr. Saunders. In one case it is an absolute constitutional require- 
ment, and in the other case it is a hardship imposed by an arl)itrary 
and unnecessary interpretation of the constitution. 

Mr. Thurston. No; it is not at all. 

Mr. Saunders. You can not cite me to any constitutional pro- 
vision which plainly says that a man must be on the tax list in order 
to vote. 

Mr. KoRBLY. It is conclusive of an affirmative proposition, and 
you argue that it is also conclusive proof of a negative proposition. 

Mr. Thurston. Yes, undoubtedly; and especially in this. The 
requirement is that it shall contain all the names, and it is perfectly 
evident that it was the intention of the legislature that this should 
be the proof, the only proof, both ways at the polls, for the judges of 



220 PARSONS vs. SAUNDERS. 

election; because in the only other two cases that could arise, if the 
party who could not have been on that roll for other reasons can 
bring his treasurer's certificate there, they are required to accej)t 
that as evidence. But now let us see what is claimed here: It is 
claimed that notwithstanding these statutes, notwithstanding a man 
is not on the list, that the judges of every election precinct have a 
right to sit judicially and hear and determine the case of every man 
who comes and says, ''I am not on the list, but I have paid my tax." 

Mr. Saunders. Yes; and our statute gives them the right to hear 
all challenges of voters. 

Mr. Thurston. But this is not a case of challenge at all. 

Mr. Saunders. I do not know why. 

Mr. Thurston. It does not involve a challenge. 

Mr. Saunders. It involves the right to vote. 

Mr. Thurston. Yes; but the law has provided how challenges shall 
be made. It has not provided that the judges of election shall have 
the right to sit judicially to determine whether a man actually paid 
his tax or not; nor have these same judges of election been given the 
right to establish rules of evidence as to how that proof shall be 
made, whether by hearsay or by the declaration of Tom, Dick, and 
Harry, or by the certificate of the treasurer, or whether in any other 
manner. Even in the case of parties who have been prevented, as 
by living outside the county, or as new voters, from being upon the 
rolls, the legislature has limited their proof to the certificate of the 
treasurer. Do you think that the law intended to permit men who 
could have been on that list and had not exercised the due vigilance 
to place themselves there, to have their names put there afterwards? 
Do you think that the law intended that the bars should be thrown 
down and that they should not be required even to present a treas- 
urer's certificate at the polls as other people are, in order to be 
entitled to vote ? 

Wliy, Mr. Chairman, if that rule of construction is correct, if the 
law of Virginia confers upon the judges at each polling place — these 
little, irresponsible election officers who strut for a day and then 
disappear — if it is intended to confer upon them the judicial power 
regardless of these election laws, to permit by any proof they are 
willing to accept, a man to establish the fact that he has actually 
paid his taxes, it opens the conduct of every election in Virginia to 
all sorts of fraud and partisan mismanagement, if political parties 
see fit, as they sometimes do in other States, to take advantage of 
such situations. In my judgment if you estabhsh the rule that those 
election judges can let a man vote on the strength of any kind of 
proof that is satisfactory to them and taken at the polls and not 
made of record, that can not be challenged anywhere else, that can not 
be revised or reviewed or apj^ealed from, if you intend to say that the 
legislature has given those judges that power, I intend to say that 
the minority party of the State of Virginia will never carry another 
congressional election in that State. They can not do it. The tes- 
timony taken in this case shows how many have voted and how many 
were permitted to vote who were not on that tax-paid list, and the 
evidence shows in many cases that those who were permitted to 
vote, and who satisfied the judges of election on that point, were not, 
in fact, entitled to vote. 

Mr. Saunders. Let me refer you to the law in that connection. 



PAKSONS VS. SAUNDERS. 221 

Mr. Thurston. Yos. 

Mr. Saunders. If a man has not paid his taxes, that is a question 
of fact, is it not, and not one of law ^ That |)resents a simple ques- 
tion of fact to the judges. This reads: 

Any elector may, and it shall be the duty of the judges of election to, challenge the 
vote of any person who may be known or suspected to be not a duly qualified voter. 

And then there follows another section which describes how^ they 
shall hear the evidence in each case and determine on that question 
of fact. 

Mr. Thurston. That question does not go at all to the question of 
the man who is on the list. 

Mr. KoRBLY. May I ask you a question, Senator ? 

Mr. Thurston. Certainly. 

Mr. KoRBLY. The constitution of Virginia says that a man who 
has paid his taxes shall be entitlefl to vote. What have you to say 
as to the prescribed methods of limiting that right ? 

Mr. Thurston. I was about to get to that. The constitution of 
every State prescribes the qualifications of an elector. In the old 
States, under all constitutions, the only requirement was that an 
elector must be 21 years of age and a citizen of the United States, 
and must have resided so long in the State, and there it stopped. 
Under all those constitutions, in order to secure purity and fairness 
in elections, gradually there came to be enacted first registration laws, 
and then other laws following along the line of securing justness 
and fairness and purity in election methods. Every one of those 
laws provided that men, otherwise duly and constitutionally quali- 
fied, should do certain things before election day in order to vote, 
and I know of no cases where any of those provisions of registration 
or otherwise of that kind or character have been declared as violating 
the constitution, although in many instances and under particular 
circumstances they do prevent m-^v from going to the ballot box, to 
the booth on election (hiy, who are citizens and qualified electors. 

Mr. Saunders. You think that great evil will follow from allowing 
the judges to pass on this simple question of fact. Does it not sug- 
gest itself to you that if the principle you contend for, of the power 
of the legislature to make these requirements, be conceded, the legis- 
lative action can destroy the constitutional guarantee b}^ making 
provisions in conflict with it ? 

Mr. Thurston. Oh, that has all been worked out by a harmonious 
and unanimous line of decisions through the courts, that the legis- 
lature has the power. Of course it is subject to a judicial review. 
If they pass an act which in effect deprives a man of his right of 
suft'rage, it is unconstitutional. 

Mr. Saunders. That is exactly wdiat I hold. 

Mr. Thurston. But it is held by all courts that it is within the 
power of the legislature to prescribe the laW'S and methods by which 
every elector can put himself in a position to insist on his right to vote 
at the polling place. 

Mr. Carrico. Our constitution provides how every man shall go 
on the list. 

Mr. Thurston. Yes ; I understand that. In Virginia there has been 
no conclusion at all ; but I say in States that have no other provisions in 
the constituti(m, registration laws have always been upheld; and yet if 



222 PAKSONS vs. SAUNDERS. 

the contention made lie re is correct, no registration law is good, because 
the contention would be that while the constitution does not require a 
man to register, yet being a qualified elector under the constitution he 
has a right to vote, notwithstanding what the legislature may insist he 
shall do before he exercises the right. The whole question is always, is 
this requirement placed upon this man for the purpose of securing 
purity and fairness in elections, a reasonable requirement, that he 
must comply with before he can insist upon the right to vote. Every 
man has a right to go into court, but no man can get into court unless 
he goes there upon a proper statement of his claim. He has got to 
do certain jurisdictional things to get into court. 

Mr. KoRBLY. But in every court there are secondary methods of 
getting at facts by evidence. 

Mr. Thurston. Yes. But a man can not go into court, just walk 
into court, and say ''I am here, and this is my case." He has got to 
proceed by the orderly methods pointed out. So in the case of 
every registration law it is provided that men must register before 
a certain time. They keep the list open until certain days and then 
it is provided that they shall be closed at a certain time. Many of 
those first registration acts contained no provision whereby a man 
could swear his vote in on election day, and yet they were held good. 
The same suggestion was made in all those cases, and the argument 
went on and on and on, that a man might be out on the road traveling 
and out of the State for thirty days before the election, and he would 
have had no chance to register. The only answer to that is that it 
is a reasonable requirement that a man shall not be permitted to assert 
his right to vote unless he has registered. It is not a question of 
his right to vote, but he shall not be permitted to assert that right to 
.vote at a particular election unless he has complied with the con- 
ditions. 

Mr. Saunders. Unless he has performed the requirements of the 
statute, he can not insist upon the right to his vote. The two cases 
in which those requirements were waived were at least specific and 
absolute; but now you wish to add something by construction. 
Mr. Thurston. No; not at all. 

Mr. Saunders. You want to add to our constitution by con- 
struction. 

Mr. Thurston. Oh, no; it is specific by any rule of construction 
we can invoke. It is specific under the two reasons that I suggested, 
first, because the law requires that the list shall contain all the names, 
and, second, it is specific when it makes the list absolute proof of what 
is contained in it. By intendment, by the same rule that was ever 
applied to any statute, by the same nde of construction that has been 
applied in Wisconsin, Indiana, and Illinois on the constitutional 
questions I have referred to, the opposite inevitably follows, that 
where the statute has pointed out the direct means of proof, it ex- 
cludes every other kind of proof; and by the further fact that in the 
only two cases of persons who could not have by a little exercise of 
diligence placed themselves on this list, the statute has permitted 
them and them only, by express terms, to qualify at the polls by the 
presentation of the certificate of the treasurer; and even as to them 
it has limited the character of the proof that they can present; one 
class of people must stand on that tax list, while those who could not 
have got on it if they had exercised the vigilance and diligence that 
the law requires, are permitted to present a treasurer's certificate. 



PAB.SONS VS. SAUNDEKkS. 228 

In the case of ex-soldiers who need pay no ])oll tax the hiw pro- 
vides that the reo;istration books shall state that fact, and nowhere 
is any power given the judges of election to decide any of these ques- 
tions except from ollicial records. 

The Chairman. If there is anything else you want to present, 
Senator Thurston, I wish you would do it in as short a time as j)ossi- 
ble. We do not want to call you back, and the committee is anxious 
to adjourn. 

Mr. Thurston. Yes; I understand. The committee has been ver}^ 
kind to me. I have tried to present the case as briefly as I could, 
but I have had a good deal to go through, and I have tried to confine 
myself as much as I could to those questions which 1 thought impor- 
tant and material. 

Mr. Chairman, 1 tiiink I have at least challenged, and pretty 
sharply, the attention of the members of this committee to all the 
laws and all the statute's, and to what I think should be the proper 
construction to be placecl uj)on them, and as to their application to 
a case of this kind, and with that I submit the case. I only wish to 
add, not rhetorically, as my friend did, who at the end of his address 
made a most magnificent peroration, but in all sincerity, as I know 
he was sincere, the desire and the belief that this case will be decided 
as a question of law by a court exercising judicial powers, and that 
within the sacred precincts of this court, where justice sits, no more 
than in any other judicial tribunal shall any outside considerations 
be permitted to enter. We do not ask, we do not expect, any deci- 
sion other than that based upon the deliberate judgment of this com- 
mittee as to the law and the facts. 

ADDITIONAL STATEMENT OF MR. SAUNDERS. 

Mr. Saunders. Mr. Chairman, I am glad I met Senator Thurston. 
It has been a pleasure for me to conduct this case with him. Before 
you break up, I want to say a word in respect to an outside matter 
that was brought in here by Governor Montague, and to which I 
wished to reply at the time. I wish to submit in this connection 
a matter of record. It was suggested, and it has been argued before 
the committee, that with the most ample opportunity to pass the 
act of 1902 over his veto, the legislature acquiesced in the force of 
his reasoning. I simply wish to call your attention to the fact that the 
veto was sent in on the 2d day of April, and on the 2d day of April, 
according to the acts of the Virginia legislature that I have here, the 
last acts were signed by Governor Montague. That is, his veto mes- 
sage came in when the legislature was breaking up, and there was 
no time to take up and consider the message with a view to passing 
the act over the veto. This required a two-thirds vote, which at that 
time of the session was hard to secure. The legislature might not 
have passed the act over the veto, even if the effort had been made, 
but certainly no adequate time was afforded in which to make the 
effort. At that period of a legislative session it is frequently hard to 
get a quorum. 

Mr. Thurston. I do not want to discourage the committee, but 
that reminds me of the fact — it will only take me a moment or two 
to present it — that I have omitted to say what I had intended to say 
about the report of Mr. Taylor in the Kentucky election case. It was 



224 PAESONS vs. SAUNDEES, 

very strongly argued here by Judge Saunders that that case was pre- 
eminently an authority of authorities, because it was so clearly an 
unchallenged declaration of the law on the subject as evidenced by 
the fact that Congress did not even pass upon it or take it up. It 
was never questioned in Congress. The facts, however, of that case 
convey to my mind an entirely different idea of its authority as repre- 
senting a decision of the House of Representatives. It is a very 
learned and very able paper, prepared by Mr. Taylor and submitted 
as the argument and the voice of one lawyer in the case, backed up 
by the votes of a majority of his associates; but instead of being the 
action of the House, or approved by the House, or confirmed by the 
House, the fact of it is, as you will see if you read the record, that the 
Taylor report was never brought up in the House of Representatives, 
and was never acted upon by the House, and does not stand as an 
adjudication by the House. 

I forgot to refer to the Virginia case relied upon by Mr. Saunders 
as sustaining the absolute and nonreviewable power of the legislature 
to apportion Members of Congress to districts regardless of any 
attempt to comply with the requirements as to compact and con- 
tiguous territory or equality of population. 

In that case the legislature had passed a general apportionment act, 
which it was charged it had no authority to do. It was also charged 
that the legislature had not created districts of compact and con- 
tiguous territory and had not made a fair distribution of population. 
It was not even pointed out in what respect they had failed as to any 
one district, and the decision at best is nothing more than a general 
declaration of the power of the legislature to make a general apportion- 
ment of congressional districts. 

As pointed out by Governor Montague, the case is not reasoned 
out at all, no authorities are cited, and the case itself is not even 
cited as an authority in any of the many succeeding cases in courts 
of the highest authority having under consideration the same or 
similar constitutional questions. 

It has no analogy to the case made here, and is not a construction 
of the clause of the Virginia constitution invoked by us. 

The Chairman. The committee are willing that you should have 
until Tuesday evening to file any additional authorities you wish to 
file, calling our attention to anything further you may wish to present. 

Mr. Thurston. We will call the attention of the committee to that 
election case in 138 New York. 

Mr. Saunders. I filed the cases of Sherrill v. O'Brien and of Carters. 
Rice, myself. 

The Chairman. You have until Tuesday evening at 6 o'clock for 
the filing of briefs. 

(At 1.30 o'clock p. m. the committee adjourned.) 



LEAg'lO 



